Evidence obtained by the National Crime Agency (NCA) following an infiltration of EncroChat data in 2020 has led to many prosecutions and convictions in England and Wales. Crucially, an ongoing case being heard by the Investigatory Powers Tribunal (IPT) is posing serious questions regarding the admissibility of messages and photos obtained from EncroChat system. The Tribunal’s ruling, which is not due until early 2023, could have significant implications for those being prosecuted and those who have been convicted with the assistance of EncroChat evidence.
Free Initial Telephone Discussion
For a free initial telephone discussion, please call us on 020 4538 1365 or email firstname.lastname@example.org and we'll be in touch shortly. We can help clients wherever you are based across England and Wales.
What is EncroChat?
Set up in 2016, EncroChat was an encrypting picture and messaging provider, guaranteeing its users secure and secretive communications. EncroChat handsets use a Wi-Fi signal rather than mobile networks and users are limited to sending or receiving encrypted text or picture messages. At one point, these handsets were used by more than 9,000 people across England and Wales.
While encrypted digital data platforms are legal and are used by many to protect their privacy, EncroChat telephones, since their inception in 2016, have been a source of great concern for the law enforcement agencies such as the National Crime Agency (NCA), since they were being used as tools by organised crime groups to further their criminal trade.
The EncroChat Hack and ‘Operation Venetic’:
In March 2020, French law enforcement agencies successfully hacked into EncroChat’s network and infiltrated tens of thousands of encrypted messages. This data was shared with the NCA, leading to the launch of ‘Operation Venetic’ and the searches and eventual arrests concerning hundreds of individuals allegedly involved in criminal activities.
Can EncroChat data be used in Court?
The law regarding intercepted communication, which is what EncroChat evidence pertains to, is very strict. Such communications can only be obtained and used as evidence in Court in exceptional circumstances and in cases where authorities have obtained a Targeted Equipment Interception (TEI) warrant. The NCA had obtained a TEI warrant for the EncroChat operation.
A number of ‘EncroChat’ Trials conducted since 2020 have ruled the data to be admissible as evidence and these findings have largely been upheld by the Court of Appeal. Courts have also ruled that the use of these telephones by offenders added sophistication in the functioning of their criminal enterprise, therefore viewing their use as an aggravating factor for sentencing purposes.
However, an ongoing case being heard by the IPT could materially shift the current approach to EncroChat evidence in Court. Submissions are being made that a Targeted Intercept (TI) warrant would have been the appropriate warrant for the EncroChat operation, and this warrant would not allow messages collected by EncroChat to be used as evidence. Instead, the NCA obtained a TEI warrant, and it is being argued that fundamental errors were made by the NCA in making an application for the TEI warrant, who were determined to view the data as TEI to allow for its usage in Court proceedings. Should the Tribunal rule in favour of this argument, it may result in hundreds of EncroChat convictions being quashed.
If you have been charged of offences involving evidence based on EncroChat data, you should seek the advice of our specialist and experienced lawyers to successfully navigate the outcome of your case. Ben Bansal and Pratik Patel are defending a number clients being prosecuted with the assistance of EncroChat evidence.
How do I pay for my legal fees?
Please contact us to discuss your circumstances and possible funding options. If you do not have the finances to pay for legal advice, you may be eligible for Legal Aid funding.
How to get in contact
Contact us now on 020 7404 3004. Our specialist criminal defence solicitors can offer you a free initial consultation. Alternatively, email us at email@example.com or complete our free online enquiry form at https://www.ikandp.co.uk/contact-us.
We are available 24 hours a day, 365 days a year.
If you have been arrested or are due to attend Court imminently and require urgent assistance, please contact us on our emergency number on 07738 802993.
We can assist wherever you are based and have offices in central London.