Judge relents to allow EncroChat conspiracy to murder trial one year extension for expert report
A JUDGE who seemed determined not to allow an adjournment to an EncroChat conspiracy to murder trial, even if it meant the defendants having no legal representation, relented after submissions from defence and prosecution lawyers.
Mr Justice Ian Dove (above) had earlier said he did not want any further delays, sending the trial into the either, and safeguards could be put in place for defendants representing themselves.
Edward Jarvis, 56, and Michael Earle, 45, both from Liverpool, have denied charges of conspiracy to murder, class A drug supply and blackmail. Last Thursday Jarvis was told by his legal team they could no longer represent him, as revealed by Essex News and Investigations, and the case at Manchester Crown Court was adjourned until Monday to allow him time to find new lawyers.
On Monday Judge Dove was told by a new solicitor he could take Jarvis on, but he would need between six and nine months to prepare for the trial.
This came after last Thursday, Jarvis had pleaded with Judge Dove to allow him "to have a fair trial."
However, Judge Dove said he was reluctant for any more adjournments, saying safeguards could be put in place if Jarvis had to represent himself in court.
The court heard that Jarvis' barristers Michael Bromley-Martin QC and Joanne Cecil stood down from the case after they were heavily criticised by Judge Dove for failing to get an expert witness report about the reliability of EncroChat message evidence ready in time.
They had elected to draft the report after the conclusion of a separate challenge in a criminal trial and another challenge about EncroChat evidence which has been made to the Investigatory Powers Tribunal (IPT) with a ruling not expected until the Spring. Judge Dove said this had created unnecessary delays to the criminal trial.
But, Mr Bromley-Martin had claimed that they had pulled out following advice from the Bar Standards Board (BSB), the barrister's regulatory body, something Judge Dove said he found difficult to accept.
Matthew Ryder QC, the Deputy Mayor of London for Social Integration, Social Mobility and Community Engagement, (above) who is representing Earle, said he had received the same criticism from Judge Dove, over the expert witness report, and the same advice from the BSB.
He said his legal team may also have to walk away if the adjournment was not granted to allow the expert witness report to be prepared.
In scenes rarely witnessed in a criminal trial, Mr Ryder urged Judge Dove to reconsider his position.
He argued that if representing himself, Jarvis would have to wade through ten lever arch files of unused material on top of all the evidence put forward by the prosecution in the case.
He said: "The man on trial is facing life imprisonment and there is no suggestion by anyone in this court that he does not have a lawyer through any fault of his own.
"My lord I, urge you as strongly as possible as I can, to reflect on going down this path.
"As a member of the bar for 30 years, I feel obligated to tell My Lord it is a step that should not be taken at this point. If My Lord goes down that path, it is a decision for My Lord to take, but I say with the utmost respect, I will need time to discuss this with Mr Earle."
He said that his team may be left in the same position as Jarvis'.
Mr Ryder said: "I will have to take advice and would like to see the transcript of the ruling from November 18.
"My client can't have a fair trial without that expert evidence, so yes, we are still considering withdrawing.
"I need time to digest it, I have got a client who faces conspiracy to murder times three.
He also said that Judge Dove had refused the adjournment without first considering if any other lawyers could have been instructed by Jarvis, who could have got the report done earlier.
Mr Ryder also called on the prosecution to say if they felt Jarvis could have a fair trial without legal representation.
He added: "If the CPS thinks he (Jarvis) can have a fair trial unrepresented then he (Mr Leach) should say or if they are neutral.
"I don't think they think he can or agree with your honour's position, so if I am wrong in this, he should say."
Alexander Leach QC, representing the CPS, said Jarvis was still missing several case papers, including the sequence of events for the conspiracy to murders.
He said: "The prosecution's 7,500 pages can be provided (to Jarvis) tomorrow, but the unused material will take longer."
He said Jarvis would be able to take some of the papers between court and prison each day and may be able to get access to a justice laptop, where evidence is uploaded, if he feels able to use one.
The following day Duncan Penny QC represented the CPS and Jarvis was able to address him.
He said: "Mr Penny, you are the lead prosecutor in England and Mr Bromley-Martin told me you are a fair and honest man.
"Do you believe knowing that I must represent myself, at no fault of my own and being denied my expert witness, and I believe this expert witness would have proved my innocence, that I can have a fair trial?
Mr Penny said it was "a matter for discretion of the court to proceed in these circumstances (defendant not represented)" and that there was "no absolute right to legal representation."
He added that if the lack of representation was a result of the actions of or manipulation by the defendant, then they could be left to fight the trial with no other lawyer, but that the situation had been created through no fault of Jarvis.
He also said the severity of the charges faced should be taken into account.
He said: "To answer Mr Jarvis' question, I think we feel the best way forward is for further investigation into getting legal representation for Mr Jarvis."
Judge Dove said: "What Mr Penny points out is unassailable, as there is nothing in any of this material which suggests Mr Jarvis bears any responsibility personally for the conduct of his legal team in withdrawing from this case." He also said he was now concerned about the logistics of Jarvis getting his case papers to and from prison.
The case was adjourned for almost a year until October 2022 for Jarvis to obtain legal representation and get the expert report prepared.
Jarvis and Earle were arrested as part of international investigations into the encrypted EncroChat mobile phone system.
The EncroChat investigation happened after Dutch and French law enforcement managed to hack into the supposedly secure communication system in April 2020.
They allowed access to British police forces to historic and live messaging being sent on the devices used by around 9,000 people in the UK.
This triggered scores of police raids across the country with more than 1,500 arrests so far and hundreds of people charged.
However, many cases have been held up as there have been a number of legal challenges around admissibility of the evidence as live interception of phone calls in the UK is not usually admissible.