Criminal cases with evidence from EncroChat and ANOM
The arrival of cheap mobile phones was welcomed by the criminal community as the ultimate tool for conducting ‘business’, but it has now emerged that police all over the world have been planting bugging software on them, and arresting users on an industrial scale. Ironically, the bugging software has been sold to users on the promise that it gives unbreakable end-to- end encryption, whereas it actually copies police into private conversations.
The recent news is of the infiltration of the ANOM messaging app by an alliance of police from the US, Europe, Australia, and Canada.
The infiltration of the EncroChat network by French and Dutch police in the summer of 2020 led to hundreds of arrests across Europe and an increasing number of convictions in the UK. EncroChat had been sold to its users as a secure communication network and had apparently been used by criminal enterprises for the purposes of sending encrypted messages (typically to traffic drugs and firearms) using a special handset to avoid detection by the authorities. For those unfamiliar with Encro, a similar system of end-to-end encrypted messaging was recently portrayed on the BBC’s Line of Duty.
The interception of the messages had been achieved by the French police’s cyber crime unit (with the appropriately Digital Age name of ‘C3N’) implanting software by way of an update in all the EncroChat mobile devices in the world. The implant then transmitted all the data held in the phone’s memory to C3N. Believing it to be unbreakably secure, it is said the users abandoned their usual caution and even arranged contract killings while police took notes.
The Court of Appeal (in A, B, D & C v R  EWCA Crim 128) considered the issue of whether evidence obtained in this way from the EncroChat devices could be admissible in criminal proceedings. The appeal was brought on the basis that the messages should have been excluded under the Investigatory Powers Act 2016 (IPA). The question the court was asked to consider was whether the messages were intercepted when they were being stored by the devices, or when they were being transmitted. The defence argued that if intercepted during transmission, the messages should be inadmissible as evidence in criminal proceedings by s. 56 of IPA.
To summarise the lengthy, technical judgement, the Court of Appeal decided that the EncroChat messages were intercepted when being stored, and that they are admissible in criminal proceedings as a result. (Readers are referred to the judgement linked above for further detail.)
Defendants considering whether to argue similar questions about the admissibility of EncroChat material at trial are told, at paragraph 6 of the judgement, not to be surprised if ‘trial judges deal with them rather more briskly’ in future.
Saunders Law has been instructed in a number of EncroChat cases and there is some concern that giving general permission to police to bug people’s phones subverts the laws protecting our civil liberties. To the extent it reveals drug dealing, it is arguable that the end justifies the means, but where does it lead for our privacy and civil liberties? Bugging operations have been in the hands of ‘intelligence led’ policing in the shadows by such as the National Crime Agency, and now that RIPA has been circumvented at the Court of Appeal, who is guarding our everyday privacy?
Please get in contact with our Regulatory & Criminal team for advice in relation to any offences relating to EncroChat or encrypted phone by calling 0207 632 4300 or click the Make An Enquiry button above. Please note that Saunders Law crime department only takes on private paying clients.