Explanation of EncroChat evidence
This explanation of EncroChat cases, and the preparation of such cases has been prepared by Tank Jowett Solicitors, who currently act in over 30 such cases.
At the beginning of July 2020, the UK authorities made a dramatic announcement, namely that they had managed to infiltrate the EncroChat network, and had been monitoring it for a period of 3 months, since March 2020. Such an announcement would have immense consequences for both law enforcement and organised crime, as it was the biggest most significant development in crime detection arguably since DNA evidence gathering advances, in terms of the scale of the arrests which would follow.
What made the development additionally so significant was the scale of the evidence that would follow. Many criminal networks who had been operating ‘under the radar’ suddenly had 3 months of their communications exposed for law enforcement to see, and the implications for those arrested was the emergence of very damning and extensive evidence of criminal conduct.
The EncroChat network was an encrypted network which had been in operation for several years, with servers based in France. Communications would take place between encrypted devices and were impossible to infiltrate by law enforcement agencies. The devices themselves were expensive to acquire, not available through conventional retailers, and used, the UK law enforcement agencies concluded, almost exclusively for crime.
Across the world, it was estimated that there were 100,000 users, each with their own device and username or ‘handle’, with 10,000 alone in the UK.
Once the announcement occurred, arrests began, on a significant level, and they are still ongoing. The Commissioner of the Metropolitan Police, Cressida Dick, has said that it may take 2 years to arrest all those involved in criminal activity recorded through the EncroChat evidence gathering.
Defendants began to be arrested, and the legal challenges almost immediately began.
Under the Investigatory Powers Act 2016, live communication intercepts are not admissible in evidence in criminal cases. The argument put forward at Liverpool Crown Court, in one case was that this evidence was exactly that; live communication intercepts.
Not so, said the Judge, who concluded that this was stored evidence.
This Judgment made it to the Court of Appeal, who came to the following conclusion:
‘We have concluded that the only substantial question which the judge was required to
answer was whether the EncroChat material was stored by or in the telecommunications
system when it was intercepted. Like him, we consider that these communications were
not being transmitted but stored at that time. That being so, the appeal is dismissed.’
Therefore, the current legal position regarding EncroChat material is that it is admissible in criminal proceedings.
Defending EncroChat cases
Tank Jowett Solicitors act in a large number of such cases, and therefore are able to explain in some detail the way in which these cases are prosecuted, and more importantly, in this section, defended.
It is essential at the very outset to split the evidence into 2 parts:
Firstly, what is the evidence of criminality within the EncroChat material? Is it clear what it relates to? Can this be challenged? If there are translations, are they accurate? If for example the evidence relates to drug dealing, does the evidence actually relate to drug dealing, or efforts to drug deal? The realities of drug dealing must come into play here, as it must be considered that many drug deals do not bear fruit, and therefore the actual scale of the criminality may be much less.
Secondly, can the EncroChat device be properly linked to the Defendant? This is otherwise known as Attribution. EncroChat devices, when operating, would have sim cards, and would connect to the nearest phone mast, or mast with the strongest signal, in the same way that a conventional phone would. Therefore, it would be possible to see the movement of that EncroChat device when the user travelled around. Can that movement be properly linked to the Defendant? Many Defendants might have another mobile phone, perhaps a contract phone, and many EncroChat prosecutions have involved evidentially tying up the device to a personal mobile phone, or, a car’s movements through Automatic Number Plate Recognition (ANPR), surveillance or other evidence.
All of Tank Jowett’s cases are currently ongoing in the courts.