Leon Francis Atkinson & Ors v R

Hearsay from an unavailable foreign investigator may be admitted where the statutory gateway is met, its reliability can be tested by other available material, and its admission does not make the proceedings unfair. A party that has invited hearsay evidence cannot later object to substantially equivalent evidence without unfairness to the opposing party.

Under the Investigatory Powers Act 2016, communications lawfully obtained from storage on handsets pursuant to a targeted equipment interference warrant may be disclosed and used in criminal proceedings. The statutory prohibition on interception material does not prevent disclosure of either the communications or their origin in those circumstances. A thematic targeted warrant may cover a defined communications system used for a single investigation into criminal activity.

The appellants faced Crown Court trials arising from two investigations into alleged organised-crime use of EncroChat encrypted handsets. The prosecution relied on messages and images obtained by French and Dutch authorities after an implant was deployed to the handsets.

At a preparatory hearing, Dove J admitted hearsay evidence from a French investigator and ruled that the EncroChat material was admissible. He found that the messages were extracted from storage on the handsets, rather than intercepted in transmission. He also rejected challenges under the Investigatory Powers Act 2016 to the admissibility of the material and to the targeted equipment interference warrants.

The defendants appealed under section 35(1) of the Criminal Procedure and Investigations Act 1996. The central issues were the hearsay rulings, the factual source of the data, the effect of Schedule 3 to the 2016 Act, and whether a bulk rather than targeted warrant was required.

1. Appeal dismissed. The court upheld Dove J’s preparatory ruling in its entirety.
2. The evidence from Mr Shrimpton was admissible. The defence had itself elicited hearsay evidence about the technical briefing and thereby agreed to its admission. It was not open to the defence to object, only in re-examination, to substantially similar questioning by the Crown. The judge was entitled to treat the usual formalities as varied.
3. The hearsay evidence of Mr Decou was properly admitted under the Criminal Justice Act 2003. Applying the successive approach in R v Riat [2012] EWCA Crim 1509, the judge was entitled to find that it was not reasonably practicable to secure Mr Decou’s attendance, that he was apparently credible, and that the extensive documentary and technical material enabled the reliability of his account to be assessed. The lack of cross-examination and the evidence’s significance required caution, but did not make admission unfair under section 78 of the Police and Criminal Evidence Act 1984. The judge likewise properly admitted Ms Sweeting’s evidence of Mr Decou’s confirmation under section 114(1)(d).
4. The judge was entitled to be sure that the implant collected the messages from handset storage. The defence alternative was technically feasible, but it was speculative and introduced substantial additional complexity. The judge had considered the apparently inconsistent documents and was entitled to rely on the coherent body of evidence, including the technical evidence, contemporaneous records, and evidence from the French investigation. No disclosure failure arose because the prosecution held no further relevant material and there were no reasonable further enquiries.
5. On its proper construction, Schedule 3 paragraph 2 to the Investigatory Powers Act 2016 permits disclosure and evidential use of communications lawfully intercepted while stored on handsets under section 6(1)(c). “Disclosure” has its ordinary broad meaning. It includes revealing the communications and their origin during trial, legal argument, closing speeches and summing up. This followed R v A, B, D and C [2021] EWCA Crim 128.
6. A targeted equipment interference warrant was appropriate. Operation Venetic was one investigation into users of a defined system believed to be used almost exclusively by organised criminal groups. Section 99(11) also prevented the criminal court from investigating the warrant’s validity, although it remained open to the defence to contend that particular material fell outside the warrant or was obtained in transmission.

• Court of Appeal (Criminal Division): By [2021] EWCA Crim 1447, dismissed the interlocutory appeals and upheld the admissibility ruling.
• Crown Court at Manchester: Dove J, following preparatory hearings, ruled on 19 July 2021 that the challenged hearsay and EncroChat evidence were admissible.