ENCROCHAT: NCA warrant to get intercepted data from France was lawful, say IPT judges

BRITAIN'S biggest ever operation against organised crime, after the encrypted EncroChat phone system was intercepted, was lawful a specialist tribunal has ruled.

The Investigatory Powers Tribunal (IPT), that can demand any evidence from the National Crime Agency (NCA) or security services, has said the warrant used to obtain intercepted EncroChat evidence was correct and lawful.

It comes as a separate crown court EncroChat application hearing is considering if information about how the interception was carried out can be withheld from the defence on national security grounds through a public interest immunity (PII) application.

PII applications can only be made to prevent the release of covert techniques, informant's identities and issues of national security.

Prosecution barristers are arguing that certain details about how the encrypted phone network was intercepted by French and Dutch police in April 2020 should not be released on grounds of national security.

Lawyers for a number of EncroChat defendants are counter arguing it has to be disclosed in the interest of justice as it could otherwise never be known if the National Crime Agency (NCA) was being truthful.

A decision has yet to be made in the crown court case which cannot be identified for legal reasons.

The separate IPT case was brought by ten defendants facing EncroChat charges in 2021 as exclusively revealed by Essex News and Investigations.

The IPT panel was led by Lord Justice Edis (above).

More than 2,500 people have been arrested under Operation Venetic, the National Crime Agency (NCA) investigation into the use of the encrypted phone system EncroChat by suspected drug and firearms traffickers and money launderers.

Hundreds have been charged and several already convicted but with many trials held up due to legal challenges and the IPT case.

In April 2020 Dutch and French investigators broke through the encryption of the supposedly secure EncroChat encrypted phone communication platform which was being used by around 50,000 people worldwide, including about 9,000 in the UK.

They allowed police forces across Europe, including in the UK, access to previously sent and new "real time" messaging between suspected organised crime groups. It led to hundreds of raids, arrests and seizures of drugs, cash and firearms across the UK in a series of unconnected operations.

EncroChat shut itself down when it discovered the hack in June 2020.

Police and other agencies are allowed in this country to tap into phone calls as they happen, known as a live intercept, but it can only be used for intelligence purposes and not as prosecution evidence in court.

Yet, the NCA, police and CPS have introduced real time messages from the EncroChat hack into criminal prosecutions under Operation Venetic.

In some cases defendants have been charged based on real time messages alone with no drugs, firearms, cash or other evidence found including devices.

Defence lawyers argued that the real time messages were "live interceptions'', which are inadmissible as evidence in British courts, and sought a court ruling that the real-time messages could not be used as evidence during criminal trials.

However, in early 2021, Lord Burnett of Maldon, Lord Justice Edis and Justice Whipple, sitting at the CoA, prevented the Sub Zero test case, about the admissibility of the real-time messages, from being sent upwards to the Supreme Court.

Court of Appeal judges agreed with Judge Dove, who also presided over Sub Zero, who said that because the messages were briefly stored on the sending device before being sent, and then briefly stored on the receiving device, before being read, it was not a live interference.

The judges ruled that it was the same as hacking into the historic stored messages or even emails, which is called targeted interference and can access material that can be used in court.

The IPT looked at the legality of the warrant used to obtain the data from foreign counterparts and whether it was lawfully obtained

The IPT is a judicial body that operates independently of government to provide a right of redress for anyone who believes they have been a victim of unlawful action by a public authority using covert investigative techniques.

The ten applicants argued that the EncroChat real time message evidence should not be admissible in criminal trials due to being a live intercept and have also taken issue with the warrants used by the NCA to access EncroChat data from foreign counterparts.

Lawyers for the ten defendants asked the IPT to look at the warrant the NCA used to access the EncroChat data from European counterparts.

In the UK the Investigatory Powers Act (IPA) allows police and HMRC to apply for a warrant to carry out "targeted equipment interference" (TEI) to hack into emails or digital messages relating to a "specific" person location or operation.

A TEI warrant can also be applied for in a "thematic" sense to hack into the same for a group of people who share a common purpose of criminality, but only for a single investigation or operation.

A "Bulk Equipment Interference (BEI) warrant, to allow the interception of any whole sets of data, can only be applied for by the heads of MI5, MI6 or GCHQ in the interest of national security and only to obtain the data of people living outside the UK.

The NCA applied for a "thematic" TEI, to obtain the data, even though it was seeking access to the messages of all around 9,000 users of EncroChat in the UK.

It led to multiple investigations against unconnected suspects all under the banner of the NCA's Operation Venetic.

A thematic TEI application should name as many people or organisations under investigation as reasonably possible.

However, the NCA did not name anyone in its TEI application.

Lawyers for the ten argued to the IPT that what the NCA effectively applied for was a Bulk Data warrant under the pretence of a Thematic TEI one.

There were several days of the IPT hearing last year when lawyers for the defendants alleged that NCA officers had "misled the tribunal" about their understanding of the type of evidence and discussions with the French about the interception, 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".

However, the IPT judgement, released today, said: "It is declared that that the respondent did not fail to discharge its duty of candour and did not mislead the Judicial Commissioner when it sought approval of the warrant from the Judicial Commissioner.

"It is declared that the respondent was not required, by reason of section nine of the Investigatory Powers Act 2016, to obtain a targeted interference warrant in order lawfully to acquire EncroChat data.

"It is declared that the respondent was not required to obtain a bulk equipment interference warrant in order lawfully to obtain EncroChat data.

"It is accordingly declared that the warrant was lawfully issued."

The NCA also had to apply to France for a European Investigation Order (EIO) to obtain the material, but the IPT said it had no authority to rule on its legality.

The judgement added: "It is declared that the Tribunal does not have jurisdiction in relation to the question of whether the EIO was made lawfully."

The judgement can be appealed at the Court of Appeal.