Connor Palmer & Ors v National Crime Agency

Sections 9 and 10 of the Investigatory Powers Act 2016 address different requests to foreign authorities. Section 9 is confined to requests to intercept communications during transmission which would require a targeted interception warrant in the United Kingdom. It does not extend to requests concerning stored material or unidentified users.

Section 10 generally requires mutual-assistance authority, but its specific exception for stored communications applies only where its statutory conditions are met. A targeted equipment interference warrant is not sought for an improper purpose merely because it is intended to make proposed conduct lawful. A single investigation may concern one communications system and many users. Permission was refused because the grounds disclosed no arguable error or compelling reason.

Five groups of appellants sought permission to appeal from the Investigatory Powers Tribunal’s decision in 11 linked proposed appeals concerning the application of the Investigatory Powers Act 2016 to Operation Venetic and EncroChat communications. The IPT’s decision was reported at [2023] UKIP Trib 3.

The challenges concerned whether the National Crime Agency required a targeted interception warrant or mutual-assistance warrant, whether its targeted equipment interference warrant had an improper purpose, whether a bulk equipment interference warrant was required, and whether the IPT had erred in assessing EncroChat’s criminal use. The central issue was whether any ground satisfied the statutory threshold for permission to appeal.

Applications for permission to appeal refused. The court assumed, for present purposes, that there was a relevant request, that the French authorities had intercepted communications, and that the IPT had jurisdiction.

1. Section 9 of the Investigatory Powers Act 2016 had to be read with the provisions governing targeted interception warrants. It concerned requests to intercept communications during transmission which would require such a warrant if carried out in the United Kingdom. It did not apply to requests concerning stored material or unidentified or unidentifiable users. The court followed the reasoning of R v A, B, D and C [2021] EWCA (Crim) 128, reported as R v A and others [2021] QB 791.
2. Section 10 governed requests for assistance from foreign authorities. Although the general rule required a mutual-assistance warrant, section 10(2A) created a specific exception for requests concerning stored communications made under a statutory power or court order. The exception was not automatically satisfied by every European Investigation Order, and an order concerning live communications could not fall within it. The proposed challenge disclosed no arguable error.
3. The targeted equipment interference warrant was not obtained for an improper purpose. Even if the warrant later proved unnecessary, the application was not improper. Where a warrant may be required, the relevant authority must conscientiously consider whether a warrant is necessary and, if so, which warrant is appropriate.
4. Applying section 101(1)(c), Operation Venetic could properly be characterised as a single operation or investigation. It concerned one source, the EncroChat system, and had defined operational limits, despite involving a large group of users. The IPT was entitled to accept the NCA’s contemporaneous assessment that the system was used exclusively or almost exclusively for criminal purposes.

None of the six grounds raised an arguable point of law, an important point of principle or practice, or another compelling reason for permission under section 67A(7) of the Regulation of Investigatory Powers Act 2000.

• Court of Appeal (Civil Division): refused permission to appeal on all six grounds.
• Investigatory Powers Tribunal: in [2023] UKIP Trib 3, held that it lacked jurisdiction to determine whether the European Investigation Order was lawful, and that no targeted interception or bulk equipment interference warrant was required.