A & Ors, R. v

For the purposes of Investigatory Powers Act 2016, a communication is stored when it is held in or by the telecommunications system at the time of extraction. Storage is not confined to material permanently saved or accessible to its intended recipient. It may include a copy held in a device’s RAM before encryption and transmission, or after receipt and decryption.

Where stored communications are obtained under a valid targeted equipment interference warrant, section 6(1)(c) and Schedule 3 permit their use in evidence. A European Investigation Order seeking assistance connected with stored communications falls within section 10, but may rely on section 10(2A). Section 9 is confined to requests for Part 2 interception.

The appellants appealed against Dove J’s ruling at a preparatory hearing in the Crown Court at Liverpool that EncroChat material was admissible at their forthcoming criminal trial.

French investigators deployed an implant through EncroChat servers. It extracted historic material and then ongoing messages from EncroChat handsets. The National Crime Agency received material obtained through that operation under targeted equipment interference warrants and a European Investigation Order.

The central issue was whether the material was intercepted while messages were being transmitted, so as to engage the statutory exclusion, or while they were stored in the communications system. The appeal also raised the effect of sections 9 and 10 of the Investigatory Powers Act 2016 on the international assistance sought.

1. Appeal dismissed. The communications were intercepted while stored in or by the EncroChat telecommunications system. They were therefore lawfully obtained under targeted equipment interference warrants and were admissible.

2. Section 4 of the Investigatory Powers Act 2016 uses ordinary language. Its application does not depend on technical distinctions between RAM and permanent memory, or on the detailed operation of a particular technology. The statutory question is whether the communication was stored in or by the system when it was intercepted.

3. Section 4(4)(b) covers all storage in or by the system. Unlike section 2(7) of the Regulation of Investigatory Powers Act 2000, it does not require that storage enable the intended recipient to collect or access the message. The use of “and” between section 4(4)(a) and (b) also did not make the categories mutually exclusive.

4. On the judge’s findings, the implant extracted copies held on the handsets. On the sending device, the copy was unencrypted and stored in RAM before transmission. On the receiving device, the message had arrived and was being processed by the device. It was not extracted while travelling through the system. Accordingly, it fell within section 4(4)(b).

5. The Part 5 warrants made the interception lawful under section 6(1)(c). Paragraph 2 of Schedule 3 consequently permitted disclosure notwithstanding section 56. It was unnecessary to determine the alternative argument concerning section 4(8).

6. The European Investigation Order was assistance “in connection with” interception under section 10. However, section 10(2A), introduced to accommodate the European Investigation Order regime, applied to the request for stored communications. Section 9 is confined to requests for interception requiring a Part 2 warrant and did not apply to this case.

• Court of Appeal (Criminal Division): Dismissed the appellants’ challenge to the admissibility of the EncroChat material.
• Crown Court at Liverpool: Dove J, at a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, ruled on 4 January 2021 that the material was admissible.