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Encrochat is a brand of high-security mobile phones that offer their users anonymity when sending and receiving any mobile communications. The phone, and the applications that come with it, boast highly sophisticated encryption technology that promises to give users complete control over the privacy of their messages and calls. These phones, and its competitors, were initially developed as a way for high-earning individuals to secure peace of mind when using their phones. Key features of Encrochat products include dual operating systems, global use across 120 countries and security features that make erasing data as simple as sending a text or entering a password. In Encrochat’s own words, using their device was intended to be ‘the same as talking between two people in an empty room’. They promised their clients ‘future privacy in order to remain satisfied’. Unfortunately, developments in 2020 suggested that this technology was not as air tight as previously thought.
However, despite the above, a message was sent out on the 12th June 2020 to Encrochat users explaining that there had been a major breach stating:
“Due to the level of sophistication of the attack and the malware code, we can no longer guarantee the security of your device. We took immediate action on our network by disabling connectivity to combat the attack.
You are advised to power off and physically dispose of your device immediately. Period of compromise was about 30 minutes and the best we can ascertain was about 50% of the carbon devices in Europe (due to the Updater schedule).”
A source from the encrypted phone industry made a statement to the media suggesting that numerous arrests were made off the back of this breach alone. Within hours of the breach Police across the United Kingdom were engaged in search and arrest operations, which have resulted in a number of people appearing before the Courts with further arrests expected in the future.
In R V C [2020], the first EncroChat trial in 2020 resulted in the court finding that the Crown Court and section 78 Police and Criminal Evidence Act 1984 was the correct procedural process to seek to exclude EncroChat evidence. The case was before Mr Justice Dove who ruled that the EncroChat data concerned in the case was admissible and did not fall to be excluded under section 78 Police and Criminal Evidence Act 1984. The argument was made, unsuccessfully, that EncroChat messages were intercepted as opposed to being recovered from storage in handsets.
The ruling of Justice Dove was appealed and in R V A B D & C [2021], the finding in R v C was upheld at a later date by the Court of Appeal. A comment from the Court of Appeal stated that:
“If it is intended to repeat this kind of process in other pending cases involving EncroChat material, those involved should not be surprised if the trial judges deal with them rather more briskly.”
Since the first Encrochat arrests, lawyers at Lexis Solicitors have been involved in some of the leading case on EncroChat and have been working closely with experts. Counsel and Queen Counsel to challenge the smallest of evidence to minimise their client’s role.
Remember, whilst it isn’t illegal to use devices such as Encrochat to secure your communications, recent events have highlighted that they cannot always be relied on, despite their cost. The Police and the Crown Prosecution Service will now need to provide clarity on the lawful basis used to breach this network and seize information as potential evidence. This is significant since this case will be the first significant prosecution where ambitious use of equipment interference has been deployed.
If you are being investigated, charged, or even concerned you may be facing charges with a ‘Encro Chat’ case, you need to contact our team immediately and take advice from one of our specialists ‘Encro chat’ Lawyers.
At Lexis Solicitors we have a team of specialists who will be able to talk to you about the background of the admissibility of ‘Encro chat’ evidence and your rights and entitlements. Even now there are ongoing live cases which will determine the admissibility of ‘Encro chat’ evidence and our lawyers will make sure that you are kept fully up to date with the ongoing admissibility hearings. Our specialist team will be able to explain in detail the background of the ‘Encro chat’ hack and current NCA operations in place, in particular operation Venetic and operation Eternal.
Our lawyers have vast experience in working alongside experts and Counsel and dealing with ‘Encro chat’ cases and will be able to provide the best possible outcome for you.
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