Philip James O’Brien & Ors v The Crown Prosecution Service & Ors

An European Investigation Order may validly request evidence which the executing state is expected to obtain and later hold. The Directive does not prevent an order being used to obtain evidence gathered through a joint investigation team, including where the requesting state participates in that team. An order for material already held by the executing state is not transformed into a request for the requesting state to conduct the underlying interception.

Where data is supplied through an order or by police-to-police liaison, questions of admissibility remain matters for the trial court, including under Police and Criminal Evidence Act 1984. A judicial review challenge to the discrete decision to issue an order may also be refused as out of time where an adequate alternative remedy exists.

Three claimants sought permission to apply for judicial review concerning the obtaining and use in the United Kingdom of data from the EncroChat encrypted messaging system. The challenges concerned the validity of European Investigation Orders, the use of data associated with a handset in Dubai, the relationship between the orders and a French-Dutch joint investigation team, the use of material in police interviews, and proportionality.

The second claimant had been convicted of conspiracy to murder and his appeal against conviction had been dismissed. The third claimant faced proceeds-of-crime charges based on EncroChat evidence. The defendants argued that the claims were out of time, that an alternative remedy existed, and that the arguments were unarguable or had already been rejected on appeal.

1. Permission refused. None of the proposed grounds for judicial review was properly arguable. The claims were also out of time and an adequate alternative remedy existed.
2. The Directive required a broad and purposeful interpretation. An EIO could request evidence which the French authorities were expected to obtain and would later possess. Nothing in the Directive required the United Kingdom to wait until the evidence was physically in France before issuing the order. The form of the EIO was therefore legitimate.
3. Article 3 preserved the possibility of establishing a joint investigation team. It did not exclude the use of an EIO to obtain evidence held by a member state participating in such a team. The Siena communications were not confined to threat-to-life material and expressly contemplated use of the applicable EIO or mutual legal assistance procedures.
4. The bespoke EIO concerned data already held by the French authorities. It did not authorise or request the underlying targeted equipment interference and therefore did not require the United Kingdom warrant relied upon for that activity. Section 7 of the Crime and Courts Act 2013 provided a basis for the National Crime Agency to receive and disclose information on a police-to-police basis. Any issues concerning the sovereignty of Dubai or international law were matters which the United Kingdom authorities were entitled to assume had been resolved by the French authorities when obtaining the material.
5. The use of threat-to-life material in interview was legitimate because it had been disclosed under the agreed arrangements and permission had been obtained for its use. Formal statutory procedures did not prevent less formal liaison between domestic and foreign police or prosecutors. Admissibility depended on the facts and the trial court’s discretion under section 78 of the Police and Criminal Evidence Act 1984.
6. Article 6(1)(a) required necessity and proportionality to be considered. The EIOs explained that EncroChat was principally used for serious organised crime and that access to the data was potentially the only means of investigating extensive criminal activity. No arguable proportionality flaw was shown.
7. The challenges focused on discrete decisions to issue the EIOs, rather than continuing breaches, and were brought substantially out of time. Section 78 of the Police and Criminal Evidence Act 1984 supplied an adequate alternative remedy. The judgment was permitted to be cited because of the wider interest in the issues.

• Court of Appeal (Criminal Division): The second claimant’s appeal against conviction was dismissed on 27 January 2025. The court rejected arguments concerning the EIOs, section 10 of the Investigatory Powers Act 2016, the Dubai data and admissibility.
• High Court (Administrative Court): Permission to apply for judicial review was refused in [2025] EWHC 3387 (Admin).