What is EncroChat and why has it become a feature of many cases involving serious crime?
EncroChat was a European network which provided users of EncroChat phones and other devices with a way to make encrypted calls and send encrypted messages. In addition to encryption, EncroChat devices had features to protect the security of each user’s data. These included a default ‘burn time’ which wiped messages 7 days after sending and a ‘panic button’ and ‘kill pill’ (password) to wipe content. At its peak, it is thought that around 60,000 users across Europe had EncroChat devices.
Its features made EncroChat an attractive way for criminals to communicate with each other and it quickly became known as a network for criminals.
Law enforcement agencies from different countries, including the UK, were keen to access data generated by EncroChat. This became possible following a French court decision in April 2020. In June 2020, EncroChat users were alerted that the network had been compromised and the system was no longer secure. The EncroChat network ceased to operate shortly after.
The infiltration of EncroChat devices led to a string of police operations, prosecutions and convictions in the UK.
EncroChat and criminality
EncroChat was used extensively in serious organised crime, including drug dealing, smuggling, gang violence, firearms offences and people trafficking. It now regularly forms a key component of the prosecution’s evidence in these cases.
EncroChat defences – attribution and reliability
To some extent, defences available are the same as for any other criminal offence and will depend on the facts of the case. However, important additional issues in many EncroChat cases are attribution and the reliability of telecommunications evidence. This relates to the linking of an EncroChat ‘handle’ (the name ascribed to a particular EncroChat device) to a defendant.
This is often a complex task for law enforcement agencies who must piece together information from many different sources (e.g. cell site, message content, images, etc.) to attribute a handle to a defendant. Whether the conclusions drawn by the prosecution are reliable is pivotal to many EncroChat cases.
Bigger picture – was infiltration of the EncroChat network legal?
It is unclear exactly how EncroChat was compromised and what measures were taken to carry out the operation. Many consider that EncroChat servers were infiltrated illegally. EncroChat has not been accepted as evidence in several European countries.
On 11 October 2022, the highest court in France quashed a lower appeal court decision regarding the failure of French police to disclose investigative material on national security grounds. The higher court ordered the appeal court to examine whether the correct investigative procedure was followed. Many believe the ruling could have major implications for the reliability of evidence in UK cases.
A further issue relates to the admissibility of EncroChat evidence. Here, the Court of Appeal ruled in 2021 that EncroChat data is admissible. The decision followed evidence from the National Crime Agency that the seizure of data was the result of equipment interference rather than interception. The legality of the NCA’s evidence is being considered by the Investigatory Powers Tribunal. It is argued that the NCA tailored evidence to get the outcome it wanted, namely a warrant that would allow EncroChat data to be admissible in court. The IPT proceedings are ongoing.
Does your case involve EncroChat?
Cases involving EncroChat data are often very complicated as they involve considering evidence gathered from different sources including large volumes of telecommunications data from both EncroChat and other (non-Encro) networks. Sentences for these cases can attract significant sentences as the court will often consider the use of an EncroChat device to be an aggravating feature.
How we can help
EncroChat cases account for a large proportion of our workload. Our experience and expertise mean that we understand the issues involved and can give clients specialist advice based on the latest legal developments. In many cases, we also instruct experts to investigate issues relating to attribution and reliability.
If you were an EncroChat user and are concerned that your data was or may have been compromised, contact us as soon as possible. It is important to get good advice from the outset so you are best placed to deal with the case against you.
Follow our blog over the coming weeks as we look in more depth at some of the EncroChat matters referred to above.
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