“The defendants in this case, and others, have had years to get their cases in order. Applications for adjournments on the basis that something may turn up will not prosper.”

The judgment of Lord Burnett in the Court of Appeal judgment of R v Murray & Others, the latest of a series of leading judgments in the high-profile EncroChat cases, has further narrowed the scope for defendants in these cases to rely upon admissibility evidence from other EncroChat proceedings, particularly when seeking to obtain adjournment on these grounds. 

The judgment, handed down on the 16th of March, will come as a disappointment to many defendants awaiting judgment in EncroChat cases.

However, EncroChat cases remain complex and fact-specific, and the impact of the judgment in Murray & Others is likely to be felt differently by different defendants.

Background

EncroChat cases have been a talking point in criminal law since the famously secure network was compromised on a large scale in June 2020 by French and Dutch police. The operations revealed widespread anonymized communications in relation to illegal activities being carried out using the service. The hacking resulted in many of the identity-concealing handles used by EncroChat users being linked to individuals who were thereafter arrested and investigated in relation to crimes connected to the handles. 

Since the earliest EncroChat litigation, admissibility has been the principal argument relied upon by the defence. 2021 rulings by the Court of Appeal in R v A, B, D and G and R v Atkinson judged EncroChat material to be prima facie admissible, but defendants continue to seek to argue that the evidence obtained by the French and Dutch police cannot lawfully be relied upon by the prosecution, notably delaying their cases in anticipation of favourable rulings in high-profile challenges to admissibility. The outcomes of a number of ongoing EncroChat cases, as well as the judgment of the Investigatory Powers Tribunal (“the IPT”) in the complaint proceedings concluded before it in December 2022, remain anxiously awaited.

The Court of Appeal’s judgment in Murray & Others, as the latest in this history, reflects the court’s growing impatience with defendants seeking to adjourn their own cases to wait for the outcome of other EncroChat cases, as well as generally trying to bring in evidence from other cases to support their own arguments in relation to admissibility.

Facts

The facts of the case in Murray & Others are similar to those in most EncroChat cases. The four defendants were each arrested on the basis of EncroChat handles attributed to them in relation to charges of conspiracy to export Class A drugs. Their defence largely rested on the fact that the EncroChat evidence used by the prosecution was unreliable and misleading, and/or wrongly attributed to them. 

The trial was originally fixed for November of 2020, but the date was vacated pending the determination of admissibility arguments raised. In November 2021, an application to further put back the trial date until after the outcome of the proceedings before the IPT was refused. Similarly, in February 2022, an application to adjourn the trial in light of an expert report produced in the IPT proceedings was refused, as the judge noted that there had already been several adjournments in a similar vein and the prior Court of Appeal judgments had determined that EncroChat was prima facie admissible. The report in the IPT proceedings had not been prepared in relation to the current case, the expert was not accepting instructions, and there was a clear public interest in the trial going ahead in February.

During the trial itself, the defendants continued to make efforts to bring evidence from the IPT proceedings into the case. An application was made on the second day of the trial to adduce a report from a new expert in relation to EncroChat evidence; on review, the judge noted that this expert’s report was mainly a review of and adoption of the report of the expert in the IPT proceedings, and denied this ‘backdoor’ approach. An argument was also made at the conclusion of the prosecution case that the report of the expert in the IPT proceedings, whilst not evidence in the trial, still put in question the admissibility of EncroChat evidence globally, and the evidence should be excluded under s78 of PACE 1984 in the interests of justice. This argument was also rejected, as the judge ruled that the defence had had sufficient time in the drawn-out proceedings to instruct their own experts on this point, and that the report in any event strayed beyond the technical into legal interpretation.

The defendants were sentenced on 6 December 2022 to lengthy custodial sentences of more than 20 years each. They appealed the judge’s decision. The main argument of the conviction appeal was that the case should have been adjourned pending the outcome of the IPT proceedings, or to allow the expert findings from those proceedings to be heard one way or another. In the alternative, it was argued that the judge should have excluded the EncroChat evidence under s78 of PACE.

Judgment in the Court of Appeal

The applicants’ appeal was dismissed.

Lord Burnett, issuing the Court of Appeal’s judgment, noted that the conviction applications largely sought in a variety of ways to challenge the admissibility of the EncroChat evidence. He highlighted that the admissibility issue had been a driving force behind the continuous delays in the case, as the trial had been adjourned more than once. On balance, Lord Burnett considered that the interests of justice, including the public interest, were sufficient grounds for the judge to refuse further adjournment. He also agreed that the IPT expert evidence was directed at other matters and the expert instructed in R v Murray itself only served as a mouthpiece for him. The s78 application was deemed ‘bound to fail’. The Court of Appeal similarly found the applicants’ subsidiary points to be without merit. 

The Court of Appeal also refused leave for the applicants to appeal their sentences. 

Significantly, at paragraph 8 of his judgment, Lord Burnett stated that: 

‘…At the heart of the collective defence endeavour was an application that the trial be adjourned to await the outcome of the IPT proceedings and to obtain further expert evidence. We were told that the defendants are happy to remain…in custody for so long as that may take. […] But there is a strong public interest in the swift resolution of criminal proceedings, compatibly with fairness and the interests of justice which include the interests of the prosecution. The defendants in this case, and others, have had years to get their cases in order. Applications for adjournments on the basis that something may turn up will not prosper.’ 

The Court of Appeal’s judgment in Murray & Others is in keeping with previous Court of Appeal rulings in EncroChat cases. The general sentiment they express is that EncroChat cases remain numerous and lengthy largely due to the issues of principle raised with regards to the EncroChat evidence, and the courts’ patience for these arguments is wearing thin. Whether admissibility will definitively be ruled out as a defence in the EncroChat case law remains to be seen, but defendants seeking to delay their own cases to await developments in other EncroChat cases are likely to be disappointed. Likewise, seeking to rely upon expert evidence from other cases may not prove a successful course of action.

In any event, R v Murray & Others serves as a reminder that EncroChat cases continue to prove a complex area of the law, and that specialist legal advice will be essential to any successful defence, particularly if defendants wish to rely on admissibility as a defence.

As leading experts in EncroChat litigation who represent and advise defendants with ongoing cases in this area, JMW Solicitors will continue to follow these developments with interest. 

For more information on how we can defend you against a charge related to an encrypted phone, call JMW today on 0345 872 6666, or complete our online enquiry form to request a call back at your convenience.