Our criminal defence solicitors have seen a rise in the number of arrests following the EncroChat hack. If your encrypted data has been accessed by the authorities, or you are worried that you might be affected, here is what you need to know.
Criminal defence solicitors
If you need legal advice in the wake of the EncroChat hack, please contact us now at Ashmans Solicitors. We have a specialist team of criminal defence solicitors with offices in London, Leeds, Sheffield, Huddersfield and Dewsbury. We are available to take your call 24 hours a day, 7 days a week.
What is EncroChat?
EncroChat was one of the world’s largest encrypted communications services. It was estimated to have 60,000 users across Europe, including 10,000 users in the UK. It is not entirely certain who operated EncroChat, although its servers were located in France.
The purpose of EncroChat was to provide a secure communications network where messages could not be easily intercepted. EncroChat attributed this need to a lack of privacy and human rights concerns, in a world where personal data can easily be tracked and traced.
Users were given a specially modified mobile device called an EncroPhone. This could not be used to make voice phone calls. Instead, it came pre-loaded with private messaging apps which could send text and picture messages to other EncroChat users.
Devices were hosted on EncroChat’s own servers. They also contained other security mechanisms, such as a burn facility, which allowed phone data to be erased remotely. Phone data would also be wiped unless a 15-digit passcode was entered correctly. The handsets operated via Wi-Fi signal, rather than mobile phone networks. It was also easy for users to disable features such as the camera, microphone and GPS.
These security measures made EncroPhones popular amongst celebrities, high net – worth individuals and –allegedly –organised criminal gangs, all of whom valued the secrecy and anonymity the platform provided.
What is the EncroChat hack?
In early June 2020, EncroChat users received a text message saying that their data was no longer secure. Users were advised to dispose of their EncroPhone immediately. The statement said their servers had been seized by ‘government entities’. EncroChat then took the decision to cease operations permanently.
It is thought that French authorities launched an investigation into EncroChat in 2017 after it was repeatedly linked to criminal activity. They then put a ‘technical device’ in place which allowed them to access EncroChat’s encrypted messages. This information was shared with law enforcement agencies across Europe, including the UK’s National Crime Agency (NCA). Codenamed Operation Venetic, authorities were ‘listening in’ on conversations between EncroChat users for months before the security breach was identified.
Nikki Holland, director of investigations at the NCA, said: “This is the broadest and deepest ever UK operation into serious organised crime.”
However, it is not entirely clear how the authorities infiltrated EncroChat’s servers. This may become vitally important later down the line. EncroChat claims their servers were ‘seized illegally’. If so, the data cannot be used as evidence in a court of law.
What arrests have been made following the EncroChat hack?
Over 700 arrests have been made in Britain alone since EncroChat alerted its users to the hack. The NCA has also confirmed that to date, £54 million in cash has been seized, along with 77 firearms and two tonnes of drugs. There have also been arrests in Holland, Norway, Sweden, Spain, France and Ireland.
Will more arrests be made?
It is almost certain that more arrests will be made in the wake of the EncroChat hack. The NCA has said that it initially focused on intercepting serious crimes, including urgent cases such as murder and kidnappings. It is likely that further arrests will be made in the months and years to come, particularly in relation to ‘white-collar’ or financial crime. In fact, it is thought that the NCA has shared information with HMRC, so there is likely to be action taken against those accused of tax evasion and other fiscal crimes.
Dame Cressida Dick, the Metropolitan Police Commissioner, said: “This is just the beginning. We will be disrupting organised criminal networks as a result of these operations for weeks and months and possibly years to come.”
The NCA also said that any criminal who uses an encrypted phone should be “very, very worried.”
Is it illegal to own an EncroPhone?
If you have an encrypted phone, this might leave you fearful that you, too, will soon be facing arrest. However, it is not actually illegal to own an EncroPhone, or any other encrypted device. After all, the popular messaging app WhatsApp uses end-to-end encryption. Also, EncroPhones were originally intended for military use. Currently, there is no suggestion that EncroChat has done anything wrong. Rather, authorities are concerned with the content of any messages that you have sent and received.
What are the potential offences relating to encrypted phones?
You cannot be charged with a criminal offence for owning an encrypted phone. However, if the authorities intercept messages that implicate you in a crime, you could face legal action. The NCA has already said that EncroChat users have been linked to serious offences such as murder, kidnapping and threats to life. There is also speculation that the service was used by organised crime groups involved in drugs offences and financial crimes.
As mentioned above, the authorities managed to access EncroChat’s servers, allowing them to read private messages between users. Anyone who sent or received a message in relation to a criminal offence (whether already committed or planned) may well come under investigation. This has already led to scores of arrests, with many more expected.
What happens if I’m arrested and I had an EncroChat phone?
You will not be arrested simply because you had an EncroChat phone. However, if the police suspect that you are involved in criminal activity as a result of communications intercepted during the EncroChat hack, it is vital that you get immediate legal advice. You may come under investigation long before you are actually arrested. You should appoint a criminal defence solicitor as soon as you think you are under investigation.
A criminal defence solicitor can advise how best to handle the situation. It is important that you do not answer any police questions without your legal representative present. If you are arrested, then you must be told the grounds for your arrest. You and your solicitor must also be allowed to see documents and records relating to your arrest. This will provide more clarity as to the information the police have regarding your alleged criminal behaviour.
What happens next depends on the circumstances of your case. You will likely be released under investigation(RUI). This means that the police want to gather more information regarding your alleged criminal activity. Charges have not yet been laid, but you are still a suspect. You may also be released on bail/conditional bail. If you are charged, you will either be remanded in custody or released pending a hearing at the Magistrate’s Court.
Do I have to disclose my phone PIN to the police?
If you have been served with a section 49 notice, then you must give police your PIN number or any other password or code that would enable them access to your data. This mechanism is available to the police under the Regulation of Investigatory Powers Act 2002 (RIPA). A failure to comply with a section notice 49 can result in a two – year prison sentence.
You do not have to disclose your PIN number to police unless you have been served with a section 49 notice. However, the police can seize your possessions as part of a criminal investigation, including your mobile phone, laptop and other electronic devices. These can be sent to experts for testing.
Can I defend a charge relating to an encrypted phone?
If you have been charged with a criminal offence, you are entitled to lodge a defence. If the alleged offence related to encrypted data, there is always the chance that the police have misinterpreted your messages or falsely accused you of wrongdoing.
The EncroChat hack also raises complex legal questions regarding the legality of the evidence seized by the authorities. Indeed, the prosecution will likely rely on the messages intercepted during the EncroChat hack to prove your guilt. In criminal cases, this must be proved beyond reasonable doubt. But thanks to the secrecy of Operation Venetic, there is uncertainty as to whether this evidence was legally obtained. This could lead to various legal challenges.
What are the legal challenges to the EncroChat hack?
EncroChat has suggested that their servers were seized illegally. If so, it will be possible to argue that the data cannot be used as evidence, on account of the fact that it was illegally, unfairly or improperly obtained. The law states that if the admission of the evidence would have such an adverse effect on the fairness of the proceedings’ then the court ‘ought not to admit it’. If the evidence is deemed inadmissible, it cannot be used against you. This may leave the prosecution very little to work with, meaning the case against you has little prospect of success.
There are circumstances in which evidence that is illegally obtained can be used in a criminal trial. This is permitted under section 56 of the Investigatory Powers Act 2016. However, these are very limited.
There may also be grounds to argue abuse of process. This is when it would be impossible for you to receive a fair trial. In EncroChat cases, this would arise due to the way in which evidence was gathered. If the court agrees that there has been an abuse of process, the proceedings will be stopped. This is known as a ‘stay’ and will either be temporary or permanent.
Furthermore, questions will be raised as to whether the European Convention on Human Rights has been breached, which protects the right to respect for private life. This includes private messages and protects the public from unlawful surveillance.
These are the types of legal challenges that will be raised in the coming months, as EncroChat cases work their way through the courts’ system. At Ashmans Solicitors, our criminal defence solicitors will stay abreast of any new developments, applying the relevant case law to achieve a successful outcome on behalf of our clients.
What sentences could I face for offences relating to EncroChat?
If EncroChat evidence is relevant to your case, and you are found guilty, it is difficult to say what sentence you would receive. It all depends on the nature of the offence. The judge will take other factors into account when sentencing you. This including mitigating factors that will help to reduce your sentence, such as good character references and genuine remorse. It also includes aggravating factors that will work against you, such as being the ring – leader of an organised criminal gang.
Is owning an EncroPhone an aggravating factor?
The use of an encrypted device, such as an EncroPhone, will be deemed an aggravating factor by the courts. If you used an EncroPhone to organise or conduct criminal activity, you may face a harsher sentence. This is because the use of an encrypted device indicates sophisticated and planned criminal behaviour.
What are the future consequences of the EncroChat hack?
There have already been some high – profile arrests following the EncroChat hack. In Northern Ireland, for example, Michael O’Loughlin has been arrested for conspiracy to murder and other serious offences. The court was told that the evidence against him was obtained through “legal authorisation that allowed access to…encrypted mobile phone content.”
No doubt further arrests will happen in the immediate future. However, it remains to be seen whether evidence seized as a result of the EncroChat hack will be permitted in court. The legality of it is yet to be tested. Our criminal defence solicitors will certainly be challenging the actions of the authorities and requesting that any EncroChat evidence be excluded.
Our criminal defence solicitors
If you have any concerns about the EncroChat hack, please contact our criminal defence solicitors for advice. We defend those who have been accused of criminal activity and will represent you throughout proceedings. This includes free legal representation at a police station.
At specialists in criminal law, we know how to mount a challenge to any evidence linked to the EncroChat hack and can successfully defend the allegations made against you.
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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.