Palmer & Ors v National Crime Agency

Factual and Procedural Background

This judgment follows an oral hearing concerning applications for permission to appeal from a decision of the Investigatory Powers Tribunal ("the IPT") in 11 linked proposed appeals. The National Crime Agency ("the NCA") is the respondent to these appeals. The IPT decision related to the application of the Investigatory Powers Act 2016 ("the IPA") to Operation Venetic, the NCA's response to EncroChat devices. EncroChat devices were encrypted telephones used predominantly for criminal purposes, with users identified only by randomly generated usernames, making attribution to specific individuals difficult. Approximately 9,000 users were estimated to be in the United Kingdom.

The appellants are applicants for permission to appeal, represented by various counsel, and they rely on six grounds of appeal. The IPT decision concerned the legality of a second targeted equipment interference warrant ("TEI 2") issued under the IPA. The IPT had heard evidence from NCA officers and analysed the nature of the interception and the warrants involved. The IPT concluded that the purpose of the TEI was to render lawful the conduct of a joint investigative team ("the JIT") from foreign authorities, which otherwise might have constituted an offence under the Computer Misuse Act 1990, thereby enabling the NCA to obtain intercepted material from the JIT. The IPT also held that the NCA was not required to obtain certain other warrants, including a targeted interception warrant ("TI") or a mutual assistance warrant ("MA"). Permission to appeal was refused by the IPT, and this judgment addresses the applications for permission to appeal from that refusal.

Legal Issues Presented

1. Whether section 9 of the IPA required the NCA to obtain a targeted interception warrant (TI).
2. Whether the targeted equipment interference warrant (TEI) obtained under Part 5 of the IPA was obtained for an improper purpose.
3. Whether the IPT erred in law by holding it had no jurisdiction to consider whether the NCA breached section 10 of the IPA by not having a mutual legal assistance warrant (MA), and whether such a warrant was necessary.
4. Whether Operation Venetic constituted a "single investigation" for the purposes of section 101(1)(c) of the IPA.
5. Whether the IPT improperly blurred the distinction between thematic and bulk interception warrants in a manner that interfered with the appellants' article 8 rights.
6. Whether the IPT erred in holding that EncroChat was used exclusively or very nearly exclusively for criminal purposes.

Arguments of the Parties

Appellants' Arguments

• Ground 1: Section 9 clearly required a TI because it applies to interception of communications sent by or intended for individuals believed to be in the UK, without any carve-out for stored data. The IPT misinterpreted section 9, and the prior case relied on by the IPT was not binding.
• The IPT’s argument that the appellants would receive a "windfall" if the TEI was not required was incorrect; the statutory language should be given effect.
• Ground 2: The TEI was obtained for an improper purpose as it was only meant to make lawful the conduct of the JIT, which was not a proper statutory purpose for a TEI.
• Ground 3: The IPT’s approach to section 10 was circular, rendering the exception in section 10(2A)(a) redundant.
• Grounds 4 and 5: The IPT’s interpretation of section 101(1)(c) blurred the important distinction between thematic and bulk warrants, breaching article 8 rights. The NCA’s approach could allow TEIs to be used broadly for any platform, contrary to statutory guidance and the Code of Practice.
• Ground 6: The IPT’s reliance on a confidential strategic assessment to conclude exclusive criminal use of EncroChat was flawed, non-adversarial, and engaged the right to a fair trial under article 6.

Respondent's Arguments

• This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v A, B, D and C [2021] EWCA (Crim) 128 (reported as R v A and others [2021] QB 791)	Interpretation of interception of stored vs. live communications under section 4(4) of the IPA; admissibility of intercepted material; construction of sections 9 and 10 regarding warrants and mutual assistance.	The court found the CACD's reasoning in this case to be strongly persuasive and accepted the interpretation that section 9 applies only to requests for interception requiring a TI if done domestically, and that section 10 governs requests under mutual assistance agreements. The court agreed with the CACD's rejection of the necessity for a mutual assistance warrant in this context.

Court's Reasoning and Analysis

The court began by assuming relevant facts and jurisdictional points for the purpose of the appeals. It emphasised that the IPA forms a detailed framework designed to balance privacy protections with enabling lawful investigatory powers. The court analysed the statutory language and scheme of sections 9 and 10 of the IPA, noting that section 9 prohibits certain requests to foreign authorities to intercept communications sent by or intended for a known individual in the UK, requiring a TI. Section 9 is limited to interception during transmission and to named individuals, consistent with the TI regime.

Section 10 applies more broadly to requests for assistance under mutual assistance agreements, including requests concerning stored communications, subject to exceptions such as section 10(2A). The court agreed with the IPT and the CACD in R v A and others that section 9 does not apply to the circumstances of this case, which involve a request under a mutual assistance instrument and relate to stored communications.

The court rejected the appellants' argument that section 9 applies to stored communications and that it overrides section 10, finding that the statutory scheme and the CACD’s interpretation make clear that section 9 is confined to targeted interception requiring a TI, and section 10 governs mutual assistance requests.

Regarding the alleged improper purpose of the TEI, the court accepted the IPT’s reasoning that even if a TEI was unnecessary, the NCA did not apply for it for an improper purpose. The court found no arguable error in the IPT’s approach.

On the question of whether Operation Venetic was a "single investigation" under section 101(1)(c), the court accepted the IPT's factual findings and legal conclusions, noting the contemporaneous assessment by the NCA that EncroChat was used exclusively or nearly exclusively for criminal purposes. The court found no arguable error in the IPT’s characterisation or in its rejection of arguments about collateral intrusion and duty of candour.

The court found that none of the grounds raised an arguable point of law or an important point of principle or practice sufficient to grant permission to appeal.

Holding and Implications

The court refused permission to appeal on all six grounds.

The direct effect of this decision is that the IPT's ruling stands, confirming that the NCA was not required to obtain a targeted interception warrant or a mutual assistance warrant for the activities in question, and that the TEI was lawfully obtained and properly issued for the purposes described. The decision does not set new precedent beyond affirming the strong persuasive authority of the CACD decision in R v A and others. No broader implications beyond the parties are discussed in the judgment.