C, R (On the Application Of) v Director of Public Prosecutions  EWHC 2967 (Admin) (26 October 2020)
Andrew Bird appeared for the DPP in his successful opposition to the public law challenge to the European Investigation Order ('the EIO') used to obtain evidence of EncroChat communications for criminal proceedings in England and Wales. The case involved an application for permission to bring a Judicial Review claim in relation to the EIO, which was submitted by the CPS to the authorities in France on 11 March 2020.
EncroChat evidence is being relied upon in about 900 prosecutions, and the ruling of the Divisional Court in this case establishes that the mechanism used to bring the evidence into England and Wales was lawful. The admissibility, in any given case, of the EncroChat evidence falls to be determined in the Crown Courts. EIO's were introduced in July 2017. This is the first time that they have been considered in the English Courts.
Following the recent judgment from the Divisional Court, Alexandra Wilson provides us with a further update on the fast-paced and evolving world of Encrochat and its admissibility.
The High Court dismissed an application by the Claimant, ‘C’, for permission to judicially review the EIO that had been issued by the CPS, requiring the French authorities to give them access to EncroChat data. The EIO was submitted by the Defendant to the authorities in France on 11 March 2020.
The Claimant is currently facing criminal proceedings in Liverpool Crown Court. He is charged (with others) on an indictment containing counts of conspiracy to supply Class A drugs and conspiracy to murder. The EncroChat messages are alleged to show that the defendants were involved in an organised crime group who were trading in the supply of large quantities of Class A drugs, based in the Merseyside area. The EncroChat messages purportedly show the Claimant discussing the storage of large quantities of drugs, in particular heroin and cocaine in safe houses, and its movement and sale.
There were two grounds in the Claimant’s application for permission to bring a claim for judicial review.
- Ground 1: The statutory criteria for the issuance or validation of the EIO were not satisfied
- Ground 2: The EIO did not request that the French authorities conduct the interference with the UK-based handsets (on behalf of the UK authorities)
Ground 1: The statutory criteria for the issuance or validation of the EIO were not satisfied
In order for a designated public prosecutor to make or validate an EIO, she must be satisfied of the criteria in both Regulation 7(1)(a) and (b) of The Criminal Justice (European Investigation Order) Regulations 2017.
7. 1) If it appears to a designated public prosecutor –
a). That an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and
b). Proceedings have been instituted in respect of the offence in question or it is being investigated,
the prosecutor may make an order under this regulation.
3). An order under this regulation is an order specifying one or more investigative measures to be carried out in a participating State (“the executing State”) for the purpose of obtaining evidence for use either in the investigation or the proceedings in question or both. [emphasis added]
The Claimant submitted:
a) A particular offence relating to a specified set of facts is required. The use of the definite article in “the investigation” and “the proceedings” highlight the demand for specificity.
b) There can be no investigation into an offence (i) that is unknown to the investigating authority or (ii) that has not been committed.
c) This case was an intelligence-gathering exercise (not a request for evidence).
The Court summarises its response as follows:
- The legislation includes investigations (as well as proceedings) and a key purpose of an investigation is to establish whether or not an offence has been committed, to say there can be no investigation into an offence that has not been committed is a “logical fallacy” – (b)(ii)
- The Regulation covers investigations as well as proceedings and it does not need to be established that the offence is already known to the investigating authority at that time – (b)(i)
- There is no significance in the fact that the legislation uses the singular “an offence” or “the offence” (a point conceded by the Claimant in the hearing). It is a well-established principle of statutory interpretation that unless the contrary appears (which the court cannot see) words in the singular include the plural and vice versa – (a)
- It is not necessary at the investigation stage to set out any particular person who is suspected of having committed an offence (another point conceded by the Claimant in the hearing). When an EIO is issued it may not be known that there is an identified (or identifiable) suspect, that’s often the point of the investigation – (a)
- There can be circumstances in which it is permissible for an EIO to request the executing State to engage in the gathering of evidence, which is not yet in their possession. The clearest example would be when someone is under surveillance, and hence there is no requirement that an offence must have already been committed – (c)
The power to issue an EIO is established by the EU Directive 2014/41/EU, which is transposed into domestic law in the provisions of the Criminal Judgment (European Investigations Order) Regulations 2017.
The Claimant sought for the Regulations to be construed narrowly but the Court highlighted the importance of having regard for the underlying Directive. The Court emphasised that the underlying purpose of the Directive is to enable mutual cooperation to assist investigations of possible criminal conduct. Article 1(2) of the Directive states:
“Member States shall execute an EIO on the basis of the principle of mutual recognition and in accordance with this Directive.”
The Court found that there is no reason to give it a narrow interpretation that would frustrate the achievement of the purpose of the Directive.
Ground 2: The EIO did not request that the French authorities conduct the interference with the UK-based handsets (on behalf of the UK authorities)
It was argued that given Regulation 7(1), an EIO could not request a foreign authority to conduct a speculative intelligence-gathering exercise. The court found that this was a duplication of what was put forward in Ground 1.
It was also submitted that no legal instrument existed that permitted the French activity, conducted with the complicity of the UK authorities (neither the EIO nor the TEI warrant provided lawful authority). The court note that no complaint has or could be made in this jurisdiction about the lawfulness of the French authorities’ activities as they are governed by French law. They also note that there has been no complaint about the validity of the TEI warrants (which would have to be made in the Investigatory Powers Tribunal) and therefore the warrants must be treated as valid.
The court determined that none of the submissions made in relation to this ground had any material bearing on the validity of the EIO.
Other issues raised
During the hearing, a number of other issues were raised, including:
- The need for the Claimant to seek an extension of time
- Whether the Claimant has standing in his claim for judicial review
- Whether the High Court had jurisdiction
- Whether there was an adequate alternative remedy
The need for the Claimant to seek an extension of time
The Claimant required an extension of time because he seeks to challenge a decision made on 11 March 2020, which is when the grounds arose (not when the Claimant became aware of the decision). An application was granted for an extension (it was not opposed by the defendant).
Whether the Claimant has standing in his claim for judicial review
The test for standing in a judicial review case is whether the claimant has a sufficient interest in the subject matter of the application.
The Court determined that this cannot be isolated from the legal merits of the grounds the Claimant advances. The Court states that it would not have refused permission on the ground of standing if the Claimant’s grounds had merit.
Whether the High Court had jurisdiction
Under section 29(3) of the Senior Courts Act 1981, the Crown Court’s jurisdiction “in matters relating to the trial on indictment” is excluded from the jurisdiction of the High Court in a claim for judicial review. The Court decided that this case did not fall into that exception and hence the Court have jurisdiction.
Whether there was an adequate alternative remedy
The Claimant’s fundamental complaint is summarised to be about the use to which the product of the EIO may be put in criminal proceedings against him (not about the validity of the EIO itself).
The Court conclude that the Claimant has an adequate alternative remedy for his complaint: the Crown Court’s power to exclude evidence under section 78 Police and Criminal Evidence Act 1984 (PACE).
What does this mean?
The Court rejected the application for permission to bring a claim for judicial review in relation to the EIO.
There are a number of defendants facing criminal proceedings in the Crown Court, which have arisen out of the EncroChat hack. Those who seek to challenge the evidence obtained will need to make applications to exclude the evidence in the Crown Court under section 78 PACE.
Andrew Bird is a specialist in white-collar crime, civil and criminal asset forfeiture, and civil and public law proceedings regarding the criminal process. He is ranked in the top tiers for Chambers & Partners and the Legal 500.