Intercept evidence in criminal proceedings

• The Court of Appeal recently considered whether material obtained from EncroChat was ‘intercept material’ and inadmissible in criminal proceedings under section 56 of the Investigatory Powers Act 2016.
• The critical issue was the construction of s 4(4) of the 2016 Act: were the messages ‘stored in or by’ the telecommunications system by which they were transmitted, or were they ‘being transmitted’ at that point?

Messages exchanged through the EncroChat messaging app between handsets were designed to be end-to-end encrypted. In effect, the app provided secret communications. The company also developed a type of Android operating system, and smartphones commonly referred to as ‘carbon units’ for the purposes of exchanging the encrypted messages.

In June 2020, the company warned that the handsets had been compromised. French and Dutch police experts managed to place a piece of malware (disguised as an ‘update’) on all of the