Admissibility of Stored Intercepted Communications under the Investigatory Powers Act 2016: A & Ors, R. v

Introduction

The case of A & Ors, R. v ([2021] EWCA Crim 128) addresses a pivotal issue in the realm of criminal law and digital privacy: the admissibility of evidence obtained through sophisticated encrypted communication systems. This appeal scrutinizes whether evidence extracted from EncroChat, a purportedly secure mobile phone system, can be lawfully admitted in court proceedings under the Investigatory Powers Act 2016 ("the 2016 Act"). The appellants contest the admissibility of their communications, arguing that they were intercepted unlawfully. This commentary dissects the Court of Appeal's judgment, elucidating the legal principles established and their broader implications.

Summary of the Judgment

The Court of Appeal upheld the original judgment by Dove J, which permitted the admission of EncroChat material as evidence. The crux of the decision hinged on whether the communications were intercepted during transmission or while stored within the system. The judge concluded that the data was accessed from storage, not during transmission, thereby rendering it admissible under section 4(4)(b) of the 2016 Act. Additionally, the court affirmed that the evidence was obtained lawfully via a Targeted Equipment Interference warrant, sidestepping challenges related to sections 9 and 10 of the Act concerning international assistance and interception protocols.

Analysis

Precedents Cited

The judgment referenced prior statutory frameworks, notably the Regulation of Investigatory Powers Act 2000 ("RIPA") and the Interception of Communications Act 1985. However, the Court of Appeal deemed previous cases, such as R v. Coulson [2014] 1 WLR 1119, less pertinent due to the distinct statutory provisions of the 2016 Act. The 2016 Act's unique treatment of "stored communications" signified a departure from earlier interpretations, necessitating fresh judicial consideration.

Legal Reasoning

The pivotal legal question revolved around the interpretation of section 4(4) of the 2016 Act, which distinguishes between communications "being transmitted" and those "stored in or by the system." The court emphasized a purposive approach, focusing on the ordinary language of the statute rather than delving into technical specifics of the EncroChat system. By determining that the communications were indeed stored at the time of interception, the court validated their admissibility, provided lawful authority was established under section 6(1)(c). The reliance on fact-finding, particularly the technical operation of the EncroChat implants, underscored the judge's meticulous approach in aligning factual determinations with statutory mandates.

Furthermore, the court addressed and dismissed the appellants' arguments concerning sections 9 and 10 of the Act. It clarified that these sections pertain to requests for interception assistance and do not impinge upon the admissibility of evidence obtained through lawful equipment interference warrants under section 99.

Impact

This judgment sets a significant precedent regarding the admissibility of evidence from encrypted communication platforms. By clarifying the scope of section 4(4)(b), the court delineates the boundaries between transmitted and stored communications, providing clearer guidelines for future cases. The reaffirmation of the lawful use of Targeted Equipment Interference warrants bolsters law enforcement agencies' capabilities in digital investigations, while simultaneously reinforcing statutory safeguards against the unwarranted exclusion of evidence.

Moreover, the dismissal of challenges related to international assistance protocols under sections 9 and 10 strengthens the interoperability of cross-border investigative efforts, especially in an era where digital communication transcends national boundaries.

Complex Concepts Simplified

EncroChat and Equipment Interference Warrants

EncroChat was an encrypted communication platform marketed as secure, primarily used by criminal networks. Law enforcement agencies, with international cooperation, compromised the system to access users' communications.

A Targeted Equipment Interference warrant under section 99 of the 2016 Act allows authorities to interfere with and extract data from specific equipment, such as mobile phones, to obtain stored communications securely.

Section 4(4)(b) of the Investigatory Powers Act 2016

This provision categorizes interceptions based on whether communications are "being transmitted" or "stored in or by the system." If communications are stored, they may be admissible in court provided lawful authorization is in place.

Exclusionary Rule under Section 56

Section 56 generally prohibits evidence obtained through interception-related conduct from being used in legal proceedings. However, Schedule 3 to the Act outlines exceptions, such as evidence lawfully obtained under specific warrants.

Conclusion