National Crime Agency argues that the lawfulness of surveillance warrants issued to hack the EncroChat phone network should only be considered in the light of facts and assessments known at the time.
The intelligence officer who played a key role in the National Crime Agency (NCA)’s work on its Operation Venetic investigation into criminals using EncroChat encrypted phones had not given reliable evidence, defence lawyers claimed at the Investigatory Powers Tribunal (IPT).
The court heard yesterday that NCA intelligence officer Emma Sweeting appeared to be confident and credible, but when details of her evidence were unpacked, her credibility could not be sustained.
Defence lawyers criticised Sweeting and the NCA for obtaining a surveillance warrant on the basis of Sweeting’s account of an off-the-record discussion she had with a senior French gendarme relating to the type of warrant needed without attempting to seek written confirmation.
James Eadie KC, representing the NCA, told the court that attacks on the credibility and motivation of NCA officers had already been raised in criminal courts and the court of appeal and had been found to be without foundation.
He said it was not a credible interpretation of the law that if the intercepted EncroChat material turns out not to be a stored communication, but was live intercept, that is a breach of the Investigatory Powers Act.
The IPT is considering claims from 10 defendants who argue that the NCA unlawfully obtained a Targeted Equipment Interference (TEI) warrant to allow EncroChat messages to be used as evidence in court by wrongly arguing that the messages were only extracted from the memory of phones.
Defence experts claim that the NCA obtained EncroChat messages through a live interception operation. This meant that, legally, the NCA should have obtained a Targeted Interception (TI) warrant, which would only allow the messages to be used for intelligence gathering, rather than evidence in court.
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