Digital evidence, police investigations, and lessons learned from EncroChat: is it time for a new framework for the admission of digital and communication evidence?

The infiltration of the EncroChat messaging service, colloquially dubbed the “Crime Chat Network”, by law enforcement agencies in France and the Netherlands led to one of the largest policing operations against organised crime groups in Europe. Despite significant legal challenges, criminal courts in England and Wales, France and the Netherlands have thus far ruled in favour of admitting the evidence obtained from EncroChat devices. As investigators use increasingly sophisticated methods of evidence gathering leading to greater use of such evidence in criminal proceedings, it is vital that lawmakers and criminal courts accept that digital materials will increasingly feature in the modern criminal trial. In response to the increasing prevalence of digital materials, a change of approach to current procedural and evidential rules is required. The infiltration of the EncroChat system is offered as the most recent and illustrative example of the need to revisit and modernise approaches to intercept evidence within the criminal justice system. The traditional arguments for the upholding of the ban on intercept material in the criminal trial in England and Wales are no longer defensible. Specifically, that the admissibility distinction between evidence derived from intercepted communications and evidence derived from lawful equipment interference under the Investigatory Powers Act 2016 can no longer be justified in the context of modern law enforcement investigatory techniques. As law enforcement agencies continue to use and develop novel techniques for the gathering of so called “digital” evidence (including communications data), it is increasingly necessary that criminal procedural and evidential rules can contend with the challenges posed by modern investigative methods As such, the reliability of evidence, and those techniques, must be appropriately and adequately established and tested. It *Crim. L.R. 437 is concluded that a new approach is required; all intercept evidence should be prima facie admissible but subject to an appropriate statutory admissibility regime allowing for transparency and appropriate scrutiny of the relevance and reliability of the evidence. In an increasingly digitalised world, core questions of transparency, effective scrutiny and reliability of digital materials are extant considerations for investigators and criminal courts in all jurisdictions. The proposed solution, to admit all such evidence subject to a transparent and rigorous framework, will ensure a fairer and more honest approach to the admission of digital material.