Where does the Court of Appeal’s decision to refuse leave to refer their judgment in R v A B D & C  EWCA Crim 128 to the Supreme Court, leave those being investigated and charged with criminal offences, based on EncroChat evidence?
Encrypted telephones hit the headlines in June 2020 headlines due to a series of text messages allegedly sent to users of EncroChat. The company had marketed themselves as an international company who sold secure communications network and encrypted handsets, claiming that law enforcement agencies have taken over some of the company’s infrastructure.
“Today we had our domain seized illegally by government entities(s) [sic]”.
It is understood that users of EncroChat telephones received an urgent message saying security across Europe had been compromised for around 30 minutes;
“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“.
Independent verification of any hack or whether the message actually came from EncroChat is still not publicly confirmed.
This catalogue of events resulted in the UK National Crime Agency and international police forces undertaking rapid searches and arrests in their respective areas. Many individuals arrested may not have had any encrypted handsets in their possession.
Encro Talk has been described as a “encrypting all Voice over IP (VoIP) conversations using the ZRTP protocol and transmits them over a closed loop network. Industry Leading Hardware- Specially tailored to harden security. Removal of camera, microphone, GPS, and USB data port access”.
In summary, EncroChat handsets cannot be used to make voice calls. It uses a wifi signal rather than mobile networks and users are limited to text or picture messages. When the handset power is turned on, the device begins to encrypt. Resulting in the EncroChat phone wiping everything unless a 15-character password is entered correctly.
Encrypted digital data platforms are legal. They were developed over privacy and human rights concerns. Therefore, there are legitimate reasons people use encryption to protect their electronic messages. It therefore, follows that it is not necessarily illegal to be in possession of a handset installed with encryption technology.
Encrypted telephones however, have caused significant and growing concern for the police, government agencies and authorities, due to the fact that those involved in serious organised crime deploying the handsets as tools to further their illegal trade.
The generic history of mobile telephone usage by serious organised crime groups is that initially they used cheap, pre-paid cell phones (burner phones) of SIM cards to limit the authorities ability to track their communications.
In more recent years, many turned to iphones in the belief that encryption was a standard feature. Previously, without the passkey the police and authorities could not gain unauthorized access to the data on iphones. Developments and investment in technology have now resulted in law enforcement agencies being able to gain access in certain circumstances. This means that digital experts can now recover deleted pictures, texts, and files from a mobile phone which has not been overwritten.
Hence, the appeal of EncroChat who had marketed themselves as the “electronic equivalent of a conversation between two people in an empty room”
However, the Court of Appeal [R v Nelson & Markham  have recently found that the confirmed that the use of encrypted mobile telephones and a sophisticated magnetised void space added sophistication to the drugs enterprise and therefore, was an aggravating factor for the purpose of any sentencing exercise.
This finding was reiterated by the Court of Appeal [R v English & Read  EWCA Crim 100, 2020 WL 00592496] where the use of encrypted devices to communicate between participants allowed the court to describe this operation as “sophisticated”.
Legal developments in 2020
In the first “EncroChat” trial of 2020 (R v Coggins 2020) there have been a series of developments.
An Administrative Court hearing resulted in the court making a 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.
Mr Justice Dove presiding over the Crown Court (R v Coggins) ruled at first instance, that the EncroChat data was admissible and did not fall to be excluded under section 78 Police and Criminal Evidence Act 1984. The legal grounds upon which exclusion was sought was further to the provisions of section 56 Investigatory Powers Act 2016. In summary, it was unsuccessfully argued that EncroChat messages were communications that had been intercepted at the time they were being transmitted and were not recovered from storage in the encro handsets.
The Court of Appeal considered this finding and upheld the ruling [R v A B D & C  EWCA Crim 128]. The Court of Appeal commented at paragraph 6 of this judgement “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”.
The Court of Appeal self regulates. On 3 March 2020 the Court of Appeal confirmed that there was “no point of law of general public importance” that would justify referring their decision to allow intercepted communications to be used as evidence in criminal cases to secure convictions. Therefore, they refused leave to challenge the evidence in the Supreme Court.
What does that mean for those being investigated or charged with offending evidentially based on EncroChat data?
Those charged with offences involving evidence based on EncroChat data should note that the admissibility and section 78 arguments advanced in R v Coggins were fact specific. Therefore, it is imperative that the facts of each indicted case are considered carefully by each defending team.
It is therefore imperative, if you do find yourself arrested for offending involving encrypted digital devices that you seek experienced and specialist legal advice at the first available opportunity.
The initial questions for anyone arrested for offences based upon evidence emanating from encrypted devices should be;
- How many users have had their communications intercepted?
- Did my communications on these devices concern the preparation, instigation. or commission of crime?
- Did the police or prosecuting agency use a lawful basis to seize this information?
- If so, can the digital devices be attributed to me?
- Are there any legal arguments or submissions which are applicable to the facts of my case, based on my instructions?
The answers to all these questions will be fact specific to your case. Seek the advice of a specialist to assist you to successfully navigate the outcome of your case as soon as practicable.