Interceptions, Encrochat and Foreign Jurisdictions
July 10, 2020
By Chloe Fordham and Harriet Lavin
With the detonation of recent press coverage on Encrochat, this article will discuss some of the issues raised in early press releases. We discuss what could constitute an interception and the importance of disclosure, with particular reference to the case of Knaggs.
What is an Interception?
Interception is, in short, eaves dropping. A 2014 government review provided a fuller definition as, “the act of obtaining and making available the contents of communications sent via a telecommunications system or public postal service to a person who is neither the sender nor intended recipient”.  The most well-known example would be phone tapping. However, Section 4 of the Investigatory Powers Act 2016 goes into more specific detail of the definition of ‘interception of a communication in the course of transmission’, which put simply and in the context of Encrochat, could include the following examples:
- Changing the way the Encrochat phones work – say, to send a copy of the message to you the hacker;
- Intercepting internal communications which pass within the Encrochat phone;
- Listening in on the signal which is external to the system/device e.g. the signal transmit from your phone to the phone mast.
Interception is said to be one of the most important techniques used in the investigation of terrorism and serious and organised crime. But it is also intrusive and since 1985 intercepted material has been prohibited from use in court in the UK. Neither the prosecution nor defence can normally rely on it. Our jurisdiction is unique in its absolutist stance on its admissibility, justifying it on the basis that it preserves the secrecy of intelligence sources. The legislation which excludes intercepted communications is section 56 of the Investigatory Powers Act 2016.
‘Intercepted Communications’ or Successfully Transmitted Messages
At this stage it is not clear precisely how the information that is now in the hands of the NCA was obtained. The methods by which it was obtained may make all the difference in the arguments which can be deployed as to its admissibility.
Online magazine Vice has reported that “French authorities penetrated the Encrochat network and installed a technical tool in what appears to be a mass hacking operation.” According to that article the French authorities had been “reading” the users’ communications for months. The French investigators then shared those messages with agencies around Europe.
A source from within Encrochat told Vice that the difference between this and previous hacks by law enforcement agencies into supposedly secure networks was that “this was malware on the Encrochat device itself, meaning that it could potentially read the messages written and stored on the device before they were encrypted and sent over the internet”. On possible way in which the malware could have entered the devices was by masquerading as a software update.
A press release from Eurojust refers to the “interception” of messages. In the case of the French police, the press release states that they were able to “put a technical device in place to go beyond the encryption techniques and have access to the users’ correspondence.” Referring to the activities of the Netherlands’ police it states that they have been given authority by examining magistrates to “follow(ed) the communications of thousands of criminals day and night.”
The various news sources appear to conflict as to whether the information was being obtained continuously in real time or in tranches from individuals’ handsets. What is not clear is whether the hack / malware / ‘technical device’ allowed the authorities to read messages as they were sent (but before they were encrypted) or once they had been received (and after being de-encrypted).
If the former is the case and messages have been intercepted at a point after they have been drafted by the sender but before being received by the recipient, then an argument that they constitute telecommunications intercepted in the course of a transmission (under the definition in section 56(5) of the Investigatory Powers Act 2016) may have some legs. If, however, the messages have been read by the authorities after they have been received onto the receiving handset, they would perhaps fall outside the definition in the Act of “intercepted communication in the course of transmission”, given that it has already been successfully transmitted.
However, the Court of Appeal held in the case of R v Coulson and others  EWCA Crim 1026 (the infamous ‘phone hacking scandal’ case) that there is an exception to the “successful transmission” rule in the case of voicemails. Where a voicemail has been transmitted and listened to, but remains stored on a device, and is thereafter listened to by a third party without permission from the recipient, that is still regarded as an interception.
There is a further possible basis for argument (which is discussed to some extent in the decision of Coulson) in a distinction between a situation where the message has merely been received by the handset and then ‘intercepted’ on the one hand and a situation where that message has been received by the handset and subsequently read by the intended recipient before being read by law enforcement agencies. One can anticipate a Court taking the view that the former instance may constitute ‘interception’ whereas the latter may not. If this argument has any merit (and really it has to be assumed by a prosecutor that it does until it is demonstrated that it does not) then any prosecutor seeking to rely upon any such messages would have to turn their mind to detailed disclosure about each particular message relied upon and whether it has or has not been read. If such detailed information is not available, this could well place prosecuting authorities in a difficult position in answering such requests by the defence.
Which leads neatly onto the next topic: the prosecutor’s responsibilities as regards disclosure.
Disclosure and PII
If there is any scope for an argument as to the admissibility of material sought to be relied upon, the Crown will be required to turn its mind to disclosing to the defence precisely how that material was obtained or to applying for PII to apply to that material. Particularly given the cross-jurisdictional nature of the investigations and the multitude of operations, this is likely to present serious challenges to a prosecutor’s duties under the CPIA. PPI applications made by the crown will be in secret. It will be for the Court then to weigh up the interests of the defence and the public interest of national security.
The Foreign Interception Exception to Section 56 of the IPA
Even if the evidence is intercept evidence, there are exceptions to its general prohibition. The most important and relevant to the Encrochat hack is the foreign interception exception. The prohibition on intercept material only applies to interceptions in the UK.
The first relevant case is Virdee v NCA  EWHC 1119 where German police provided the NCA with six recordings which they had obtained in connection with an unrelated tax fraud investigation it was conducting. The recordings provided evidence of bribery which the NCA pursued charges for. The NCA used the intercept evidence in order to obtain production orders.
The second and most important case is R v Knaggs  EWCA Crim 1863 which warrants discussion in some detail.
Factual background to Knaggs
Knaggs, Hadley and Rich were each convicted of conspiracy to import cocaine after trial. The prosecution case was that whilst Knaggs and another conspirator Ruiz-Henao were both serving long sentences of imprisonment for drugs offences at HMP Lowdham Grange, they conspired, along with others to import large quantities of cocaine from South America into the UK – although, ultimately, they were unsuccessful. Both were already serving for supply of class A drugs offences.
The prosecution was the product of an investigation by the Serious Organised Crime Agency (SOCA) called Operation Dearly. Evidence relied on included prison phone calls, documents found in cells and movements of co-conspirators outside of prison.
The conspiracy involved co-conspirators in the UK and the Netherlands. British and Dutch authorities were communicating with each other throughout. At one point the Dutch police sought an order from the Public Prosecutor in the Netherlands to intercept Hadley’s number. The order, which authorised interception of various calls between co-conspirators between 16- 24 October 2009, was obtained with the necessary permission at the Rotterdam District Court. The product from this intercept crucial material upon which the prosecution would later rely.
On 27 October 2009 the Officer in the Case from SOCA travelled to Holland with the CPS lawyer to liaise with a public prosecutor in Rotterdam (who was head of the Dutch investigation) and a Dutch inspector, regarding Hadley’s latest visits and to seek their formal agreement to use the Rotterdam seizure evidence in the UK courts.
At the trial the intercepted calls were played to the jury. Furthermore, the Dutch inspector gave evidence that the interceptions were permitted in relation to certain offences under Dutch law and applied in this case, and that all intercepts in this case had been carried out lawfully.
Prior to trial, and albeit that he had not been involved in any of the calls himself, Knaggs raised the admissibility of the Dutch intercepts as an issue, submitting that they were not authorised by the Dutch authorities and had not been made in the circumstances as claimed by the prosecution. This was in contrast to Hadley and Rich, who were not disputing the calls and were in fact relying on some of those calls to support their case.
Knaggs invited the court to make a request for assistance on his behalf to the District Court of Rotterdam as the information that he sought included relevant court orders and other underlying material. He argued that the intercepted calls formed an important part of the case against him, they had in fact been intercepted in the UK and had been dressed up to appear foreign. His argument was based upon the contention that the material served to date by the prosecution was not sufficient to prove that they were Dutch intercepts were properly authorised – which was relevant to admissibility and might amount to an abuse of process.
The judge emphasised that it was for the prosecution to prove that the intercept material was admissible in evidence; that he would make that determination prior to trial; and that the prosecution had said that all material authorising the intercepts would be disclosed in accordance with the CPIA. The request for underlying material was, he said, extremely wide and it would be inappropriate to make such a request of a foreign jurisdiction. The application, as drafted, was for the court to make a very large unfocused request for information to which a defendant in the UK would not normally be entitled – hence, in the terms sought, it was refused.
Further requests were made by Knaggs such as disclosure of copies of authorisations from the Dutch courts, full details of their investigation and copies of the requests to intercept the relevant telephone numbers.
The prosecution had asserted that they had served all the relevant information that would establish that the intercepts had been lawfully obtained and were admissible, and that there was no documentation in their possession which could or may assist the defence in arguing to the contrary. The Judge at that stage was satisfied that no order was necessary for the disclosure of further material.
As for the admissibility of the Dutch intercept evidence, it had been submitted on behalf of Knaggs that Aujla  2 Cr.App.R. 16 was authority for the proposition that for such evidence to be admissible in this country three things must be shown – that the calls were not intercepted in the UK; that they were not at the behest of the authorities in the UK; and that they had been shown to meet the admissibility requirements of the country of origin.
However, the trial judge concluded, Aujla was not authority for such propositions. If the calls were recorded outside the UK, the statutory bar under RIPA did not apply to them and (subject to s.78 of PACE) they would be admissible if relevant to an issue in the case – with the factors identified in Aujla being relevant to such a decision.
The trial judge noted that the prosecution had disclosed the Letter of Request seeking the Dutch intercept evidence, and other limited pieces of related evidence. The judge also noted that there had been no challenge to the calls by Hadley or Rich.
On behalf of Knaggs, it was submitted that no original court orders had been produced, that the copies did not have court stamps on, that there was no evidence as to who had actually carried out the intercepts etc.
The trial judge reached the ultimate conclusion that he was satisfied that the evidence of the phone calls was reliable, that there were no sensible grounds for concluding that the phone calls were not or may not have been intercepted, or were not as they appeared to be, that they had been lawfully obtained in the Netherlands and lawfully requested by the UK authorities, and that, lawfully obtained or not, it was wholly reliable and its admission in evidence could not conceivably so adversely affect the fairness of the trial that it should be excluded under s78.
At the conclusion of the prosecution case, an abuse of process application was made on behalf of Knaggs and others. It was based on various matters including alleged disclosure failures and the assertion that the Dutch intercept evidence was not what it purported to be.
The Defendants appealed against conviction on two grounds, each of which was concerned with the disclosure/admissibility of evidence relating to communications between alleged conspirators, however the key one was in relation to the intercepted phone calls made by Hadley.
On behalf of Knaggs, Hadley and Rich it was asserted that the Dutch intercept evidence showed that there was, and continued to be, serious non-disclosure by the Respondent of materials relevant to the lawfulness of the way in which the evidence was obtained – which materials were properly disclosable at trial, at least in relation to admissibility and abuse of process issues, and which remained disclosable in the appeal.
It was said that the failure to disclose itself rendered the convictions unsafe, but that the substance of the undisclosed materials would also in turn have enabled the Appellants to bolster their application for specific (but still disclosed) exculpatory material, which further tainted the safety of the convictions. Compliance or otherwise by the Respondent with its duty of disclosure was at the focus of the appeal.
Prior to the hearing of the appeal, the Respondent, following re-review of unused material, sent an email to the Appellants which disclosed decision records all to with dealings with the Dutch authorities.
It was submitted by the Appellants, in light of that email, that:
- The Respondent’s position, maintained since leave was granted, that there was no further material to disclose, had been shown to be unreliable;
- The substance of the late disclosure supported the Appellant’s assertion that the obtaining and provision of the Dutch intercept material had been for the purpose of UK prosecution, in circumvention of RIPA.
- In consequence, the full hearing could not take place until the continuing re-review had been fully explained and completed, further disclosure sought by the Appellants had been provided and special counsel appointed.
On behalf of the Respondent it was asserted that the material was not disclosable but rather had been served as the Respondent wished (albeit belatedly) to rely upon it to demonstrate, by contextualisation, that the allegations of impropriety made in relation to the Dutch intercept evidence were entirely without foundation.
The Court of Appeal ultimately examined all that material and concluded that there was no duty of disclosure in relation to the material that they had examined, no further material they needed to examine and neither special counsel nor an adjournment was necessary.
Legal Framework for the Decision in Knaggs
- Disclosure/special counsel
The statutory scheme as to disclosure before and at trial in 2011 and 2012 was Part 1 of the CPIA 1996, as amended. This included the initial duty of disclosure on the prosecutor and the requirement to review this until the accused was convicted or acquitted.
As the Court in R v Austin  EWCA Crim 1960 (“Austin No.2”) at  concluded, “It is well established that a failure by the Crown to comply with its duty of disclosure will constitute a ground of appeal. Whether a conviction is thereby rendered unsafe will depend on the nature of the matter not disclosed in the context of the issues in the case and the other evidence”
The leading authority as to disclosure at the time that Knaggs was tried was and remained at appeal, R v H  UKHL 3 in which the test was set out in the following terms:
Material may assist the accused not only where it could be used to explain the accused’s actions, support his case, have a bearing on scientific or medical evidence in the case, or provide material for cross-examination of prosecution witnesses, but also where it might lead to the exclusion of evidence or a stay of proceedings, or a finding that any public authority had acted incompatibly with the accused’s rights under the ECHR. However, there is no duty on the prosecutor to disclose unused material that is or may be supportive of their case or neutral.
The Court in Knaggs, in its discussion on the topic of disclosure, also made reference to the decision in R v Alibhai (citation) at  where the Court said: “…in a case where a complaint is made of non-disclosure of documents, it is not always necessary for an appellant to demonstrate that the disclosure of the material would have affected the outcome of the proceedings”.
As was observed in R v Ward (1993) 96 Cr App Rep. 1 at page 22:- “Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence”
The Court of Appeal concluded in Knaggs that, “We accept that in many cases it would suffice for an appellant to show a failure on the part of the prosecutor to meet disclosure obligations so that it is reasonable to suppose such failure might have affected the outcome of the trial. It is a matter of semantics whether this means that it is necessary upon an argument of this kind for a defendant to demonstrate “prejudice”. That said, even where there has been a failure on the part of the prosecution to make disclosure, this court will not regard a conviction as unsafe if the non-disclosure can properly be said to be of “insignificance in regard to any real issue”: see R v Maguire (1992) 94 Cr App Rep. 133 at page 148.”
R v H (above) was concerned with disclosure of relevant PII material and included a discussion as to the appointment of special counsel. On this subject, Lord Bingham said (at paragraph 22) that cases will arrive where the appointment of special counsel is necessary. However, he raised the problems which come with it, such as the lack of instructions from the client, the lack of confidence in the lawyer-client relation and that ultimately the defendant nor the public will be fully aware of what is being done. He further raised concerns about delay and expense when having to appoint special counsel. This means that all in all, the appointment will always be exceptional, never automatic. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant.
- Intercept evidence
In relation to interception legislation, Section 17 of RIPA 2000 was the legislation in force at the material time which, like section 56 IPA 2016, prohibited reference to or the admission of intercept evidence except under very limited exceptions.
Section 1(4) of RIPA required that where the UK was party to a mutual legal assistance treaty in connection with the interception of communications which required the issue of a warrant or equivalent, the Secretary of State was under a duty to ensure that no request was made by the UK except with lawful authority – defined in s.1(5) as including authorisation under s.3 or s.4 of RIPA – or an interception warrant pursuant to s.5(1).
Both the UK and the Netherlands were parties to the Convention on Mutual Assistance in Criminal Matters, which requires that any request from a foreign state to intercept telecommunications must include “confirmation that a lawful interception order or warrant has been issued in connection with a criminal investigation”. Thus, in order to procure Dutch interception via the Convention the UK authorities would first have to issue an interception warrant under s.5(1)(b) of RIPA, the existence of which would trigger the prohibition in s.17, making the product of the Dutch intercept inadmissible in this country.
However, that does not prevent less formal cross-border liaison between police and prosecutors, including the provision of information by one to the other. If foreign police and prosecutors carry out any intercept during or after such liaison the admissibility of the intercept in this country will depend, as the cases immediately below illustrate, upon the particular facts of the case and consideration of s.78 of PACE.
In R v Aujla  2 Cr.App.R 16, the evidence against the appellants included calls from two Dutch offenders in the Netherlands which had been intercepted under authorisation granted, without the knowledge of the English police, by the appropriate judicial authority in the Netherlands. The Court concluded that admissibility turned on the application of s.78 of PACE, including consideration of the circumstances in which the evidence was obtained. Equally, the giving in evidence of the Dutch intercepts would not elicit the Secretary of State’s sources of knowledge or the surveillance authorities’ confidential methods of work (which were the public policy issues underlying the prohibition on use of UK intercept by the 1985 Act). Finally, the court underlined that, even if it were to emerge that there was some breach of Dutch law, and it could be said that there was some breach of Article 8, that would not necessarily result in the exclusion of the evidence.
In R v P  1 AC 146, the public prosecutor in another country had obtained an order from a magistrate authorising the interception of calls made by a drug smuggling suspect. The intercepts resulted in tape recordings being made of telephone conversations between the suspect and each of the Appellants – including calls from the other country to the UK and vice versa, or when both parties were either in the other country or in England. The English prosecuting authorities, via a Letter of Request, sought and, after judicial approval in the other country, obtained the recordings and proposed to put them in evidence. Approving the decision in Aujla, the House of Lords held that although the proposed use involved an interference with the accused’s article 8 rights no breach had been shown because all had been done in the other country pursuant to statutory authority and subject to judicial supervision; that, after consideration of s.78 of PACE the trial judge had been right to rule in favour of admission; that there was no rule of public policy, independent of statute, that intercept should not be used in a criminal trial; and that, where secrecy was not required in the public interest, it was “necessary in a democratic society” within article 8(2) for all relevant and probative evidence including intercept evidence obtained abroad, to be admissible to assist in the apprehension and conviction of criminals and ensure that their trial was fair.
The House also noted (in accordance with abundant authority which it is unnecessary to set out herein) that a defendant is not entitled to have unlawfully obtained evidence excluded just because it has been so obtained. What he is entitled to is an opportunity to challenge its use and admission in evidence, and a judicial assessment of the effect of its admission upon the fairness of the trial as is provided for by s.78.
Decision at Appeal
The appeals were dismissed.
Disclosure: The court had anxiously scrutinised material newly disclosed by the Crown. It sought to identify anything that should previously have been disclosed and anything in relation to which it would be appropriate to appoint special counsel to assist and to ensure that there was no possibly relevant material which had not been provided, H, Chisholm and Austin applied. Having done so, it concluded that there was nothing omitted that should have been disclosed, nor any material with which special counsel might assist and there was no possibly relevant material missing.
Dutch intercept: The effect of s.17 RIPA was to prohibit reliance on evidence obtained by interception warrant. The UK and the Netherlands were parties to the Convention on Mutual Assistance in Criminal Matters, which required that foreign state requests to intercept telecommunications had to include confirmation that a lawful interception order or warrant had been issued in connection with a criminal investigation. Accordingly, to procure Dutch interception via the Convention, the UK authorities would first have to issue an interception warrant under RIPA, the existence of which would trigger the s.17 prohibition. However, that did not prevent less formal liaisons. If foreign police carried out any intercept during or after such liaison the admissibility of the intercept in the UK would depend upon the facts and consideration of s.78 of PACE. There had been no failure of disclosure in relation to the Dutch intercept material and the trial judges had been entitled to admit it.
The Way Forward
Much of the writing on this subject is still based on the limited information given in press releases. Consequently, there are many more questions than answers. However, there are some basic questions that will be at the forefront of every defence lawyer’s mind if such a case lands on their desk. For that reason, these same questions will be at the fore of every prosecution lawyer’s mind if they are to pursue a successful prosecution:
- How was the material obtained, by whom, at whose behest and with what authority?
- Can the prosecution demonstrate that the material is admissible and does not offend the prohibition in section 56 IPA?
- Have the prosecution provided sufficient disclosure to allow the defence to consider the possible arguments against the admissibility of the evidence?
Harriet Lavin is Exchange’s criminal pupil who is currently in her second six.