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.