Complaints that NCA failed in duty of candour over EncroChat warrants ‘incredible’, court hears

Late disclosure of notes boosts credibility

Kinnear told the court that it was “unfortunate” that an NCA intelligence officer had failed to disclose her “rolling notes” of a critical meeting at Europol until over two-and-a-half years after the first EncroChat-related prosecutions began.

But far from harming her credibility, the fact that she did another check, found the note and produced it – even though it must have been extremely embarrassing – boots her credibility, he told the court.

The Investigatory Powers Tribunal is expected to rule in 2023 whether the NCA lawfully obtained a targeted equipment interference (TEI) warrant to use intercepted messages from the EncroChat encrypted phone network in evidence during criminal trials.

In a three-day hearing, lawyers for the claimants argued that the NCA had failed in its duty of candour to the independent judicial commissioners who authorised the NCA’s warrant.

They claimed that the NCA had failed to disclose the full circumstances of an off-the-record conversation between NCA intelligence officer Emma Sweeting and senior French investigating officer Jeremy Decou, which underpinned the NCA’s warrant application.

NCA took an extra safeguard

Kinnear told the tribunal on the final day of the hearing, on 16 December 2022, that Sweeting had been criticised for checking her understanding of the way EncroChat worked with Decou, but in fact, the discussion was an “extra safeguard”.

“Ms Sweeting was an intelligence officer in a meeting of intelligence officers. She took the right steps to find information and check it,” he said.

There was hardly a better person to ask than Decou, he said.

“It would have been sufficient to leave the meeting with an understanding of what the French were going to do based on the presentations made at the meeting.”

What should the warrant have said?

The NCA’s barrister said it was not clear from the complainant’s arguments what extra details should have been included in the NCA’s warrant application to comply with the duty of candour.

Kinnear told the court he had come up with his own form of words, which he read out.

The NCA went to a three-day meeting at Europol, at which the data capture technique and other matters were discussed, he said.

“At one point during the discussion, there was some information that suggested the technique may have involved the interception of material while it was being transmitted. But at the end of the meeting, all of the NCA delegation agreed that what had been described was targeted equipment interference (TEI),” he said.

Sweeting showed the NCA’s account of the meeting to Decou, who agreed her understanding and that of all her colleagues was accurate.

“We submit that if that information had been put in, far from undermining the warrant application, it would have strengthened the application for the warrant,” he said.

Reasonable effort ‘not enough’

A lawyer for the complainants said that it was not enough for the NCA to make a “reasonable effort” to comply with its duty of candour to the judicial commissioners who granted the warrant if it had not made full and frank disclosures in its warrant application.

The most significant omission was that the NCA did not provide the context of the conversation between Sweeting and Decou that underpinned the basis of the warrant application.

The judicial commissioners should have been told that the warrant was based on an account from a single NCA intelligence officer, based on her understanding from attending a meeting at Europol, he said.

There had been no formal confirmation of the account, only an informal discussion with the intelligence officer and the French officer after the Europol meeting had finished, the court heard. No other officers were present at the discussion.

The French officer in charge of the investigation, Decou, has never confirmed Sweeting’s account in writing and has previously said he is not technical and is not confident in his command of English, the lawyer said.

The NCA has not attempted to obtain formal confirmation that the EncroChat hacking operation involved the interception of stored communications, as described by Sweeting, because they believe it will not be formally confirmed, he said.

The lawyer also said that the judicial commissioners should have been told that the NCA would not inform the French and Dutch Joint Investigation Team (JIT) of the terms of the warrant. That meant the JIT would not know whether it was acting under the terms of the warrant, he told the court.

NCA had candid discussions with IPCO

Kinnear told the court that the NCA’s legal officer discussed the warrant with the legal officer at the Investigatory Powers Commissioner’s Office (IPCO), which regulates surveillance.

They agreed that it felt like a case that the investigatory powers commissioner, Brian Leveson, should deal with personally, according to a 21 February 2020 email referred to in court.

This shows the complete opposite of a lack of candour, he told the court.

“The NCA lawyer is suggesting IPCO put their top man on it,” said Kinnear. “This is not what any organisation would do to obtain a warrant they believed they were not somehow entitled to.”

Kinnear said the head of legal at IPCO had made a large number of comments on the NCA’s draft warrant application.

“All of this shows an open and candid process,” said Kinnear. “All of this undermines any suggestion of lack of candour.”

Earlier in the hearing, lawyers for the claimants argued that the mass scale of the EncroChat surveillance meant that it amounted to bulk interception, which the NCA has no legal powers to conduct.

Kinnear said Leveson was aware from the warrant that EncroChat had 9,000 users in the UK and 50,000 worldwide. If Leveson thought that amounted to a warrant for bulk interception, he could have said no or refused the warrant, said Kinnear.

Interview with Decou

Kinnear told the court that on 24 September 2020, NCA officers travelled to France during the pandemic to interview the French senior investigating officer for a witness statement.

He said there was no reference anywhere in Decou’s statement to messages being taken from the server.

“When you look at all that evidence in the round, the clear conclusion is that the material was taken from the handset,” he said. “The NCA description in the warrant was, at the very least, accurate as to how the NCA understood it at the time the warrant was drafted, but in fact that has remained the position throughout. The submissions that there was a lack of candour or there was no checking are entirely without merit.”

Kinnear said the NCA and the Crown Prosecution Service (CPS) had made “considerable efforts” to obtain further evidence from Decou.

Although the French Gendarmerie was prepared to testify in court, the French judicial authorities did not agree to the CPS’s request to have him appear as a witness in the UK, the court heard.

Lawyers for the claimants have appointed a technical expert to conduct experiments to determine whether messages from EncroChat were obtained, the court was told.

They argued during the hearing that if messages were intercepted live during transmission, rather than from storage in a phone handset, that would render the NCA’s interception warrant unlawful, under the Investigatory Powers Act 2016.

The tribunal proceeded on the basis that the NCA had agreed that defence evidence suggesting the messages were intercepted live during transmission would be “taken as read”.

Lawyers for the NCA criticised the accuracy of the defence expert evidence on the final day of the hearing, which lawyers for the claimants told the court had undermined the basis for the hearing.

The EncroChat operation is a novel interception operation which has led to legal challenges in the UK, Germany, France and other countries.

The tribunal panel, headed by Lord Justice Edis, Lady Carmichael and Stephen Shaw KC, is expected to reach a verdict after January 2023.

Lawyers expect any decision to be appealed.