Communications intercepted during the EncroChat hack can be used as evidence, the Court of Appeal has ruled. This is an important decision that will have a significant impact on some defendants awaiting trial.

Legal advice

If you have been caught up in the EncroChat hack, please contact us for expert legal advice. Our criminal defence lawyers can recommend the best strategy in your particular case. We are available to take your call 24 hours a day, 7 days a week.

The EncroChat hack

Until the company closed its operations in June 2020, EncroChat was the world’s largest encrypted communications service. Last year, its users received a message to say that their data was no longer secure. It became apparent that French and Dutch authorities had hacked EncroChat’s systems, allowing them to access encrypted messages. This information was shared with police authorities across Europe, including UK law enforcement agencies. Over 700 arrests followed in the UK alone, with the National Crime Agency calling it the “deepest-ever UK operation into serious organised crime.”

The admissibility of evidence

Immediately after the data breach, questions were raised over how the evidence was obtained. Encrochat claimed that their servers were ‘seized illegally’. If so, then any evidence collated by law enforcement agencies would be inadmissible in court. In other words, the evidence would have to be struck out.

Intercepted material vs storage

However, to get the evidence struck out in the UK courts, it would be necessary to establish that the data was intercepted, rather than recovered from storage.

Under UK law, intercepted communications can only be obtained if the authorities have a Targeted Equipment Interception warrant. Even then, damning material cannot be used as evidence in court, aside from exceptional circumstances. The authorities did not have such a warrant, although they did have a Targeted Equipment Interference warrant. Such warrants may produce material that can be used as evidence in court.

Therefore, the question was: were the communications intercepted? If they were, then they were unlawfully obtained under the wrong warrant. Furthermore, intercepted materials cannot be presented as evidence in court.

Court rulings

This question was answered at the end of 2020, when a defendant was due in Liverpool Crown Court. In advance of the trial, the judge ordered a preliminary hearing to determine the admissibility of evidence (which had been gained during the EncroChat hack). A 15-day hearing ensued, at the end of which the judge decided that the evidence could be heard. The defendant then raised an appeal at the Court of Appeal, which delivered its verdict on 5 February 2021.

The Court of Appeal agreed with the judge. The basis for this ruling was that the communications had not been intercepted as they were being transmitted. Rather, they had been recovered from storage. This means the communications had been obtained in accordance with a Targeted Equipment Interference warrant. The Court of Appeal 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.”

What does this mean for your case?

If you are awaiting trial following the EncroChat hack, then this decision has a significant bearing on your case. The ruling does not necessarily mean that a guilty plea is now the only option available. However, it does represent a significant hurdle and will require your defence team to consider the best strategy going forward. You may prefer to plead guilty, or there may be another defence available. It all comes down to the facts of your case. In the future will bite marks be used as evidence?

Criminal defence lawyers London

If you have been accused of a criminal offence, contact us now at Ashmans Solicitors. We are specialist criminal defence lawyers who are committed to getting the very best possible result for our clients.

For a free initial enquiry, call us on 0333 009 6275. We are available to take your call 24 hours a day, 7 days a week.

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