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Ben Douglas-Jones QC appeared for the Crown in the important case on victims of human trafficking in which the Vice-President has given guidance on a number of topics.

Anonymity in appeals against convictions of alleged victims of trafficking who commit criminal acts is to be decided as per Hallett LJ’s approach in R v L; R v N [2017] EWCA Crim 2129.

I.e. in principle, it is desirable for the Court of Appeal (Criminal Division) to follow the practice of providing anonymity protection to an appellant in cases raising asylum and international protection issues, bearing in mind:

(1) the United Kingdom’s international obligations and aim to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings; but also

(2) other important issues, such as the principle of open justice in criminal trials and appeals, and that anonymity orders should only be granted when they are strictly necessary.

The Registrar invited the Court to give guidance. It proceeded to do so as follows:

1. Single competent authority conclusive grounds decisions (which are not admissible in Magistrates’ Courts or the Crown Court following R v Brecani [2021] EWCA Crim 731 may potentially be “adduced” on an application for leave or an appeal in the CACD. The context and issues will determine whether they should be received in evidence.

2. Brecani is consistent with previous authority of the CACD.

3. Brecani is consistent with the UK’s international obligations and European case law with regard to the protection of victims of trafficking.

4. As to the admissibility of expert evidence on the question of trafficking and exploitation at trial: (1) It does not matter that the members of the jury have not shared the suggested experiences described by the defendant in a human trafficking or modern slavery case. Jurors will be well placed to form their own conclusions without expert evidence. (2) Evidence is inadmissible to show whether a given set of facts meets the legal definition of trafficking.

5. On appeal it may be necessary to hear oral evidence, including from the applicant/appellant to substantiate, for instance, the history relied on if the suggested trafficking is based, for instance, on unsatisfactory and untested hearsay evidence from the appellant so that his/her account may be appropriately tested. The Court may order the production of any relevant documents, including reports such as a conclusive grounds decision. This will be a highly fact-specific judgment.

6. If the parties are not agreed on whether there is to be oral evidence, this should be referred to the Criminal Appeal Office so that the Vice- President or presiding Lord Justice can give appropriate directions.

7. The residual jurisdiction of abuse of process (in practice only to be exercised in very limited circumstances) survives the introduction of the Modern Slavery Act 2015. The Court was “rather puzzled” by the judgment of the Lord Chief Justice in DS [2020] EWCA Crim 285; [2021] 1 WLR 303. It found A [2020] EWCA Crim 1408 to be obiter. The Court was not bound by those decisions but would depart from those decisions in any event in light ofVCL and AN v UK [77587/12 and 74603/12]. The Court proceeded to hold: “if the CPS guidance in a [victim of trafficking] case is not properly applied it will not comply with its legal obligations … legal redress, in the form of an opportunity at least to make an application for a stay, should be available: which a Crown Court judge can then appraise by way of review on public law grounds. Moreover, so to conclude does not in any way involve a Crown Court judge entering into the arena of making improperly decisions of fact or usurping the functions of CPS and jury.”

8. The definition of “compulsion” in VSJ [2017] EWCA Crim 36 at [21] and section 45 Modern Slavery Act 2015 was not too narrow and it was not appropriate to adopt a “causation” based approach, rather than a “compulsion” based approach.

9. A victim of trafficking may appeal against a conviction following a guilty plea in the narrow circumstances set out in R v Tredget [2022] EWCA Crim [to be handed down on 7 February].

Operation Venetic

On the 2nd July this year French and Dutch law enforcement agencies presented the results of an investigation to dismantle EncroChat, an encrypted phone network allegedly used by criminals.

Encrochat phones were marketed as guaranteeing perfect anonymity. There was no device or SIM card associated with the user. The interface was hidden within a dual operating system and lack of traceability was also guaranteed.

Systems allowed automatic deletion of messages on the recipient’s device, remote deletion on seizure and on consecutive inputs of an incorrect password.

By 2020 EncroChat was one of the largest providers of encrypted digital communication with the majority of users, according to Europol presumably involved in criminal activity.

The company operating EncroChat used servers based in France. This triggered an investigation by French authorities who then worked with the EU Agency for Criminal Justice Cooperation (Eurojust) to organise the processing of the data.

The data was shared with the Netherlands and a JIT (joint investigation team) was set up.

Eurojust then coordinated with Europol and police forces from Spain, Sweden, the UK and Norway. This led to the interception and analysis of millions of messages between parties alleged to be planning serious criminal activity. Some of the interception was done in ‘real time’ as if the law enforcement agencies were looking over the shoulders of those involved and utilising EncroChat.

The interception of the Encrochat messages ceased on the 13th June when the company realised that the platform had been breached. Encrochat immediately sent a message warning all users and advising that the devices be turned off and disposed of.

This was too late for many and a significant number of arrests have followed. In France a newly established taskforce has been monitoring the communications of thousands of criminals.

According to Europol / Eurojust, in the Netherlands the investigation has so far led to the arrest of 60 suspects, the seizure of drugs (more than 10,000 kilos of cocaine, 70 kilos heroin, 12,000 kilos cannabis, 1,500 kilos of crystal meth) and the dismantling of 19 synthetic drugs labs. This in addition to the seizure of dozens of (automatic) fire weapons, expensive watches and cars, including vehicles with hidden compartments, and almost EUR 20 million in cash. More arrests are very likely to follow in the coming period.

Arrests and prosecutions in the UK are starting to filter through the system. On the same day as the JIT announcement the National Crime Agency reported that the following had been seized from 746 arrests:

Chief Constable Steve Jupp said “This unique operation has specifically focussed on those thought to be involved in the highest levels of organised crime and drugs supply across the UK.” The NCA described the success of the operation as having an inside person in every top organised crime group in the country.

The key question is - will the evidence obtained by the infiltration of Encrochat be admissible in prosecutions in the UK?

The process now starts of unravelling the legal processes that led us to this point. Press releases from Europol, Eurojust and the National Crime Agency have provided skeleton details of the investigation process.

Barristers at Apex Chambers will leave no stone unturned in filling in the gaps to ensure that at every stage there has been compliance with International and UK law and procedures.

According to Europol the initial data was captured on the basis of the provisions of French law and with judicial authorisation. Law enforcement agencies in the UK have procedures available to them for the gathering of evidence from European Agencies.

The Crown Prosecution Service has the ability to submit a European Investigation Order under s6 The Criminal Justice (European Investigation Order) Regulations 2017. A joint press release from Eurojust and Europol states that extensive use was made of such orders.

“Eurojust intensively facilitated the judicial cooperation, during the extensive use of European judicial cooperation instruments such as European Investigation Orders”

The Secretary of State may issue a targeted equipment interference warrant. A targeted equipment interference warrant is a warrant which authorises or requires the person to whom it is addressed to secure interference with any equipment for the purpose of obtaining communications, equipment or any other information.

According to Europol and Eurojust a taskforce was set up in France in March 2020 under the supervision of the magistrates of Lille. The taskforce has monitored the communications of thousands of alleged criminals but France does not wish to comment on these investigations or results.

Challenges to the admissibility of the evidence in the numerous cases that will be appearing before the courts will centre initially on the steps above.

Further challenges to admissibility of the EncroChat data may include whether the process infringes s56 Investigatory Powers Act as ‘intercept’ evidence, the European Convention for Human Rights and inevitably section 78 of the Police and Criminal Evidence Act 1984. The Metropolitan Police Commissioner, Dame Cressida Dick described it as a "game changer".

"This is just the beginning. We will be disrupting organised criminal networks as a result of these operations for weeks and months and possibly years to come."

It is clear that Operation Venetic (as it is called) is the biggest and most significant operation of its kind in the UK.

Apex Chambers is currently representing a number of those who have been arrested as a result of the ‘hacking’ of Encrochat devices.

Barrister Alexander Greenwood gives a first-hand account of the first trial to take place in the UK during lockdown and offers some thoughts on how the ‘new normal’ of courtroom procedures could affect trading standards cases.

The cough was clearly audible to Counsel’s row and the lofty expanse of the courtroom. The Judge’s eyebrows raised. The apologetic female juror, mid-oath, continued her covenant. Other jurors looked on nervously. The date was the March 17, 2020. The trial proceeded unremarkably .

The following day the defendant was to give evidence. All save the coughing juror were present. She had reported in overnight, self-diagnosed with coronavirus, was self-isolating and would not be attending court.

A meeting with the Judge in Chambers discussed the possible ramifications. We could go on with 11 jurors (not unprecedented). But what of the remaining 11? Would they really be able to concentrate on their task in the knowledge that the previous day one of them may have been spreading the deadly virus amongst their number?

Discretion was the better part of valour. The jury was discharged, the trial over and to be relisted at an unspecified date in the future. We all went home to lockdown and hide from the killer. Time passed slowly. Income evaporated.

Back to work

On Monday May 18 Mrs Justice McGowan DBE walked into Cardiff Crown Court to preside over a criminal trial. Her ladyship had travelled down to the Wales and Chester Circuit for what in normal times would have been the bread and butter of the local Circuit Bench.

This was the first post-lockdown trial in England and Wales. Preparations had begun weeks before. The judiciary, court staff and senior barristers had worked tirelessly to restart the system of justice. There was also a financial imperative. Barristers at the Criminal Bar are self-employed; no furlough, no trial, no income.

Suggestions had included non-jury trials; Judges sitting with two Magistrates; or the nuclear option, Judge-only Crown Court Trials. A popular analogy with the War was drawn, but even then the sacrosanct principle of millennia that the accused should be tried by their peers was upheld. Only in Northern Ireland during the height of the troubles had the fear of juror intimidation resulted in the suspension of the bedrock of our system.

The Edwardian court building had been turned into a health and safety labyrinth of yellow and black tape. Communal walkways denoted by arrows on the ground indicated a new one-way system. Chairs in communal areas were taped off if they were not two metres apart. There was no canteen or catering facilities.

Front door double entrances were unlocked to allow a way in and a way out, with never the twain meeting. Security searches were remote, as members of the public who were still allowed access to the building and hearings where possible (justice must be seen to be done) were asked to empty their bags from afar. And all were vetted and signed off by the relevant Public Health body. There could be no shortcuts.

The courtroom looked different. Two rooms both formed the same ‘Court’. In one the defendants in the dock, the Barristers distanced both from the defendant but also from each other. The Judge of course and the jury, not sat shoulder-to-shoulder in the jury box, but spread throughout the courtroom. Four in specially allocated and numbered seats in the jury box, each two metres apart and the remainder, each in numbered allocated seating, spread throughout the public gallery directly opposite the jury box and the other side of Counsel’s row. Jurors to the left, jurors to the right. The advocates surrounded.

No public, at least not in the courtroom where the evidence was to be heard. But the court had to be open to the public and press. They were located in a separate courtroom which for all intents and purposes would form part of the same Court. Proceedings were beamed via the internal video facilities to be watched on the television screens usually reserved for the giving of evidence by vulnerable witnesses. In addition instructing solicitors were linked via email to those they instructed.

Both prosecution and defence had engaged in a pre-trial visit to the Court to become familiarised with the new procedures. No longer would lawyers and court staff amble in and around court. Jurors would not be marched in close order file into and out of court. Witnesses would not walk through the packed court room. Ushers would not be able to physically assist.

A regimented procedure was to be adopted. Court staff consisted of the court clerk sitting alone; Advocates next; Defendant; Judge and Jurors. Jurors entered in the order in which they were seated to ensure social distancing at all times. Witnesses including the defendant came into court via the Judge’s entry straight into the witness box and left by the same route. Hand santisers were readily available. Gloves and masks could be worn by participants if they wished (no one did). The court was regularly cleaned during the course of the day.

Court in session

The first day proceeded tentatively. The defendant’s opinion was canvassed. Did he want his trial now or wait until who knew when? Jurors had been rigorously screened. Questionnaires were sent out in advance to establish those who were vulnerable or had concerns such that might overbear their ability to concentrate on the evidence. What was left were the willing… the hardcore… ninja-jurors.

To save time the jury were balloted whilst they remained out of the Court and were then brought in one by one and given their allocated numbered seats for the duration of the trial, holy books already in situ. All documents had to have been prepared in a sterile form in advance of trial. The indictment and jury bundles were placed in advance at the respective seat awaiting the juror’s arrival. Sterile new exhibits such as edited PACE interview transcripts would be placed in folders before jurors entered court, one for each.

Clickshare, the court system whereby the advocate’s screen is replicated on the court television system, was to be preferred wherever possible. Witnesses were asked to take their statements into court with them to be cross-examined thereon. Material to be provided to witnesses had to be available in advance. There could be no trial by ambush, not least because the ushers could not approach the witness to hand them an exhibit.

One particular difficulty were jury notes. How could a juror write a note to the Judge and pass it on when ushers could not approach? Initial thoughts that the jurors could bring their mobile phones into court and text questions to the court were rejected. A modified direction was given at the outset to encourage jurors to wait if possible until the end of the session before raising any matters of concern. Notes were to be picked up by gloved hands once the jury had filed out of the court room.

Final verdict

Did it work? Yes. Remarkably well. The formal nature of the court environment lends itself to rules and regulations. We already have many. Additional procedures were soon adopted and became the new norm. Whilst greater preparation and forethought was required, sitting times lengthened to avoid the rigmarole of trooping in and out in formation and at all times distancing. Word to the wise however: the pre-court loo stop became even more of a necessity as the sitting times lengthened.

In fact, attending the hearings felt far safer and less prone to chance encounters than the average shopping trip to the local supermarket and to the writer’s knowledge, over a month later all parties remain COVID-free.

The outcome? That doesn’t really matter. Justice was done and seen to be done.

The steps referred to above were at the height of the pandemic. But a Crown Court criminal trial was shown to be capable of running smoothly and limit risk in accordance with national guidance. The trial was a generic criminal matter. Trading standards cases tend to be far more document-orientated, but the procedure could be adopted to a longer trial with more paper and advocates.

The case was heard in the Crown Court but the considerations are the same in the Magistrates’ Court and should be insisted upon. The mitigation of the risk of infection was always the paramount consideration. The Courts must be exemplars of the social distancing rules and hygiene standards.

The wheels of justice were shown to continue turning even during a global pandemic. But Cardiff Crown Court is the largest court centre in Wales – and due to difficulties isolating jurors in their deliberations (they used another courtroom) only one trial could take place at any one time. Whilst more may be possible as the social distancing requirement halves, there is estimated to be currently  a backlog of over 51,000 outstanding criminal trials and that may rise to 66,000 within three months, which one trial per court centre is not going to reduce.

Final thoughts: hope and pray, as we did, that four weeks into that multi-handed fraudulent trading trial a juror doesn’t start to cough.

About the author

Alexander Greenwood has been a lawyer for over 25 years, is a grade 4 prosecutor and member of the Fraud panel. He is a tenant at Apex Chambers, Cardiff and door tenant at Gough Square. He specialises in fraud and regulatory work, regularly lectures to CTSI members throughout the country and is on the editorial and precedents committee of the Pink Book.

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