Encrochat

What Is EncroChat?

Encrochat was one of the world’s largest encrypted communications services with servers located in France. It is estimated that over 10,000 people were using this service in the UK and a further 60,000 worldwide.

The purpose of Encrochat was to provide a secure communications network where a text messages only service would be encrypted (much like WhatsApp) via a mobile device called an EncroPhone. Additional security features were also available. The cost of a handset was £1000 plus a £200 per month subscription.

This service appealed to celebrities but also organised crime groups. In early June 2020, Encrochat users were informed that their data was no longer secure and Encrochat then took the decision to cease operations.

NCA 

The French & Dutch authorities were able to hack Encrochat by installing “implants” which allowed them to access the encrypted messages. That information was shared with the UK authorities and the NCA began Operation Venetic.  In 2020 the NCA confirmed that they had dismantled entire organised crime groups with 1000 arrests, the seizure of £54m criminal cash, hundreds of firearms and over two tonnes of drugs.

UK law prohibits law enforcement agencies from using evidence obtained from interception in criminal trials. There are question marks over whether the Enchochat servers were accessed illegally, hence legal arguments are taking place over whether such data can be used as evidence in a court of law.

Recent Cases

On 5^th February 2021, the Court of Appeal ruled in relation to a number of joint appeals. The court was considering various admissibility arguments in relation to the Investigatory Powers Act 2016. In relation to the main appeal point, the appeal Judges ruled that the communications in the relevant cases were lawfully obtained through ‘equipment interference’ and intercepted while stored (not transmitted) on the handsets and were therefore admissible in evidence.

The Judge’s stated that the court’s task is to –

“…understand the system and then to decide whether, as a matter of ordinary language, the communication was being transmitted or stored at the time of extraction. If the former, it is inadmissible. If the latter, it is admissible, provided the appropriate warrant was in place. On the findings of the judge, the appropriate warrant was in place and the extraction was carried out in accordance with it”.

The defence teams have applied for permission to appeal to the Supreme Court.

How can we help you?

Numerous arrests continue to occur in 2021 and it is clear that more arrests will be made in the wake of the Encrochat hack and the recent appeal decision. The NCA has focused on intercepting serious crimes such as drug supply, murder, gun crime and kidnappings. It is inevitable that information will be shared by the NCA with the likes of HMRC & Economic Crime Teams and that financial crime will be next on the agenda of the authorities.

Much of the evidence being relied on involved unique and new investigatory methods. We can consider admissibility arguments and advise on whether the evidence was illegally, unfairly or improperly obtained. As well as considering the arguments raised in the recent appeal cases there are further potential arguments over the reliability of raw data and other evidence relied on by the NCA to bring prosecutions. In addition, each case will require consideration on how the French and Dutch authorities carried out the hacking, testing the provenance of that evidence and checking the continuity of the evidence before it reached the NCA.

Due to our experience, we are able to offer a nationwide service from our specialist Encrochat Solicitor Sundeep Soor. We work with expert barristers & digital experts to assist anyone caught up in an EncroChat investigation or prosecution (Operation Venetic). It is important to consider your position in confidence at the earliest opportunity to ensure the right strategy is adopted.