EncroChat Update - The Court Of Appeal

Background: Operation Venetic

EncroChat was one of the world’s largest encrypted communication services and estimated to have 60000 users across Europe, including 10000 users in the UK.

A modified mobile device was provided called an EncroPhone, primarily used to send text or photo messages. These devices each had a unique ‘handler’ name and conversations were between EncroChat devices. Microphone, GPRS and camera were disabled. A password for entry into the device and remote erasing (wipe all) were added benefits. Criminal Gangs were not the only users, celebrities, high net worth individuals and politicians also preferred them for anonymity. 

In June 2020 EncroChat users all received a message saying that their data had been compromised. The authorities in France had discovered sometime before where the servers were operating from and a software implant of sorts was added to the server allowing messages to be downloaded. Mystery does still surround the process used to implant the bugs into the EncroChat Network.

Cases of note - Sentencing

R v Nelson & Markham [2020] CoA Encrypted phones considered an “aggravating” feature.

R v English & Read [2020] EWCA Use of encrypted devices allowed the court to describe the operation as “sophisticated”.

Legal Update – Court of Appeal

R v Coggins 2020

EncroChat was deemed admissible and did not fall to be excluded under Section 78 Police and Criminal Evidence Act 1984. The argument that this was an intercept of communications rather than messages from handset memory under Section 56 Investigatory Powers Act 2016 was unsuccessful. In other countries like France and the Netherlands this has been allowed but in the United Kingdom intercepted evidence as legal evidence in court has been restricted.

The Court of Appeal Judges Lord Burnett of Maldon, Justice Edis and Justice Whipple upheld this ruling in R v A B C D & C [2021] EWCA Crim 128, they commented further that trial judges were to quickly deal with matters if the same arguments were being advanced. They did not accept the argument that the intercepts took place on transmission rather than storage.

Supreme Court Challenge

The Court of Appeal self regulates on the 3 March 2020 leave to challenge the judgement in the Supreme Court on a “point of Law of general public importance” was refused.

If you are arrested, investigated or charged with EncroChat offences, what does this now mean?

• The judgement in R v Coggins is fact specific, the facts of your case need to be considered by the defence team.

• Is the device attributable to you? The police will use, Cell Site, Co- Location, APNR, home address information from a legitimate attributed device and compare the data with an  EncroChat device for attribution.

• Does a single user have control of the device?

• Do the communications clearly suggest a crime was or was to be committed?

• Is the evidence lawfully seized? The Targeted Equipment Interference Warrant (TEI) will be considered.

• Are there any legal arguments which arise out of the facts of your case specifically which were not as relevant in the cases above or even deployed in the above cases.

• Is the raw data transparent and understandable? The raw data in some cases is of questionable reliability.

• Does the data relied upon have any meaningful context.

You will need to seek the assistance of experts who deal with serious crime and with EncroChat cases. Contact the team at Harewood Law for help: