The German federal government is actively encouraging the use of cryptography, through its digital agenda, and has been reluctant to oblige telecoms and internet companies to implement back doors. The Court of Appeal decided that the interception of the telephone calls in Holland did not represent a breach of UK law (at the time, the Interception of Communications Act 1985) because the intercept occurred in Holland. The Court then turned specifically to the formulation of s4(4) Investigatory Powers Act 2016. The court found that the French had not provided information on how they had intercepted data from the EncroChat handsets, and that French authorities were unwilling to provide further information. According to the Swedish polices nation unit NOA, the cracking of EncroChat has led to 200 people being suspected of crimes in Sweden, with several cases leading to convictions. (3) The ruling that s56(2)(c), relating to the restriction on requesting mutual assistance in s10 of the Act, does not apply, because the European Investigation Order made no request that fell within s10(1)(a) or, in the alternative, the request in the EIO was the exercise of a statutory power for the purposes of s10(2A). This is likely to be a concern for anyone suspected to be involved in serious organised crime. This is very much a side issue, but it is a bit of a head-scratcher. It is a comment on the judgment, and the way in which the Court applied the rules under the Investigatory Powers Act 2016. (If the two could not co-exist, it strikes me that an answer of "yes" to the first limb must entail a "no" to the second limb, which the Court here refuted.). The authorities did not have such awarrant, although they did have aTargeted Equipment Interference warrant. If you are awaiting trial following the EncroChat hack, then this decision has asignificant bearing on your case. All Rights Reserved. Interestingly, the NCA appears not to have cared that foreign police were hacking Britons, with the judgment noting that the French and Dutch forces told the NCA that they were going to hoover up messages from Britons regardless of whether or not they were given permission. Defence lawyers across Europe argue that the messages obtained through the infiltration of EncroChat should not be admissible as evidence in court. This level of public sector reluctance to submit to the open justice principle is noteworthy given the topic of the judicial review. In a system based on the rule of law, law enforcement authorities do not have free rein to do whatever they like. But the mere use of an encrypted phone, even one with a high level of security, is not in itself a reason to conclude that criminal conduct had taken place, said the court. (PDF) Intercepted Communications as Evidence: The 0000032972 00000 n
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