ENCROCHAT IPT HEARING: Claims NCA officers 'misled tribunal' about meetings with French
HUNDREDS of people jailed for organised crime offences could have their convictions reviewed and scores of upcoming prosecutions could be in doubt if a challenge over intercepted evidence used in their trials is successful.
The National Crime Agency (NCA), dubbed Britain's FBI, has been challenged over the lawfulness of digital evidence used in Operation Venetic, the country's biggest ever operation against organised crime networks.
The operation followed the infiltration by French and Dutch police of the encrypted EncroChat mobile phone system.
Several alleged EncroChat users awaiting criminal trials have lodged complaints with the Investigatory Powers Tribunal (IPT), which presides over complaints about unlawful use of covert investigative techniques, at a hearing that began last Tuesday (September 20 2022).
Lawyers for the complainants argued during the hearing that the real time messages obtained by the NCA constituted a "live intercept," which meant it could not be used as evidence in British trials.
During the IPT hearing at the High Court NCA officers Luke Shrimpton and Emma Sweeting, who was awarded an OBE for her work on the operation in 2020, were accused by lawyers for the complainants of "misleading the tribunal" about their understanding of the type of evidence and discussions with the French about the hack, something they both vigorously denied.
The NCA was also accused of trying to hoodwink the CPS and Sir Brian Leveson, the Investigatory Powers Commissioner, into believing that data had been stored on UK devices and was not from "live intercepts".
French and Dutch cyber experts infiltrated the system, used by 60,000 people worldwide and 9,000 in the UK, in April 2020.
They obtained historic images and messages sent but also monitored new ones sent in real time until June that year after the owners realised the compromise and shut down the platform, said to have been used exclusively by criminals.
The NCA was offered access by European counterparts to messages of UK based users if they could obtain a lawful warrant to access the information due to different laws in the UK about the use of intercepted data.
Judge Leveson authorised the warrant and the NCA was provided with access to infiltrated data.
The tribunal heard that if the data was extracted directly from the EncroChat server it was a live intercept, but if it had been stored on the devices first it was classed as "targeted equipment interference," from which evidence can be used in British courts.
However, the tribunal heard the NCA claims the French have refused to reveal exactly how they carried out the hack for security purposes.
Lawyers for complainants argued the NCA therefore can't know if the data was stored on devices or came live from the server.
NCA officers who gave evidence were accused by lawyers for the complainants of knowing that they needed to acquire a targeted interception warrant, but they were misleading about discussions with the French and instead asked for a targeted equipment interference warrant, so they could use the live data as evidence.
On Friday Stephen Kamlish KC, for one of the complainants, said Luke Shrimpton, a former NCA technical officer, had told bosses he had wiped his phone that contained messages about the discussions and thrown it in a bin after he got a new one, after he was asked by bosses to disclose its contents.
He suggested to Wayne Johns, the NCA senior investigating officer awarded in June an OBE for his work on Venetic, that they had actually received details from the French of how the hack worked but it had been "suppressed" because it showed it was live data.
Mr Johns replied: "No it wasn't."
The hearing continues.