Encrypted “Encro” Phones – the “hack”, legal challenges and consequences

2nd July 2020 Business Crime

Today the BBC reported that hundreds of suspected criminals had been arrested following reports that the “top secret communication systems” used by criminals had been “successfully penetrated.”

We discuss below the position for those who have owned an “encro” phone, used it to communicate and who may now face arrest and prosecution.

What are Encrypted Phones – are they legal?

Encrypted phones, or as they are known “encro” phones, are widely regarded as the communication method of choice for Organised Crime Groups (“OCGs”) across the UK and Europe, for their apparent entirely secure features. The “encro” telephones were originally designed for military usage, but more recently, they have been associated with criminal activity. In contrast to commonly used “burner” pay-as-you-go phones and smartphones, which can be accessed and analysed by the authorities, the “encro” has, up until now, been a completely secure and anonymous way of groups contacting each other without fear of detection or trace.

Possession or use of the “encro” telephone itself is not an offence or evidence of other criminality. It is the contents of the device that may provide evidence of criminal offences having been committed. It is however, a criminal offence under section 53 of the Regulation of Investigatory Powers Act 2002 (“RIPA”) for a suspect to fail to disclose a password or code allowing access to electronic data when served with a ‘section 49’ notice requiring them to do so. The service of a section 49 notice under RIPA is a commonly used tool to elicit passwords and codes, as failure to comply with a section 49 notice can result in a 2-year prison sentence.

Recent developments, as set out below, suggest that the previously air-tight “encro” phones are not as reliable as organised criminal groups once thought.

The 2020 Encrypted Phone Hack

Reports are being circulated that “Encrochat”, who host some of the devices have had their domain hacked by "government entities". Whilst the nature and source of the breach has not been confirmed, what we do know is that a wave of arrests and seizures across organised crime groups has followed.

The message received by “encro” users on 12th June 2020, purportedly to have been received from an “encro” phone states their servers were “attacked”, thereby leading to a statement that Encrochat could “no longer guarantee the security of the device”.

At present, European law enforcement agencies and the UK’s National Crime Agency have not commented as to whether they were connected to any operations against Encrochat, stating that “We are aware of reports related to police actions taken against Encrochat, however, we do not routinely confirm or deny the NCA’s involvement in investigations.”

Impact in criminal proceedings – can I challenge “encro” evidence? 

The attack and compromise of encrypted phones has led to mass arrests of criminal groups and individuals and shall undoubtedly lead to an increase in criminal prosecutions across the UK due to the detection of previously inaccessible correspondence between Organised Crime Groups.

It will be soon be seen whether the suggested “illegal seizure” and the evidence obtained from the telephones will be capable of supporting a criminal prosecution and what challenges can be made to the admissibility of this evidence.

It is suggested that the Encrochat data has been obtained illegally and in criminal proceedings, where evidence has been obtained illegally, a court may in some circumstances “stay” the proceedings, meaning that the proceedings are stopped, in circumstances where it is deemed impossible for the accused to have a fair trial. Where the prosecution seek to rely upon “encro” evidence, legal arguments may be raised as to whether the Criminal Courts consider that law enforcement agencies have trespassed beyond their lawful and regulated activities. The courts may find a challenge against the admissibility of “encro evidence”, meaning that the evidence would never be heard by a jury.

In “encro” evidence cases, arguments would further be raised as to whether the evidence can be relied on by the prosecution, or can be challenged under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). This section sets out that the court “may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” Further information regarding the circumstances of any “hack” will be essential; whether any laws have been breached by the investigators, when and why. The impact that this has upon the accused’s criminal trial will then be considered. 

It is, in addition, arguable that, if evidence was obtained illegally, via a “hack”, the evidence could be considered as “intercept” evidence, which under section 56 of the Investigatory Powers Act (IPA) 2016, can only be used in a criminal trial in certain circumstances. Questions will be raised as to the techniques that were used to obtain the evidence on “encro” phones. If the Encrochat messages have been intercepted, a court may consider that the secrecy of crime detection techniques should be preserved.

There may also be arguments raised citing the European Convention on Human Rights that the accused’s rights and protections have been seriously breached. It is, again, too early to say whether such arguments will succeed and shall undoubtedly depend on the circumstances and illegality of the “encro” hack.

What are the consequences?

The consequences of the 2020 “encro-hack” are potentially severe for those who have used devices; depending upon their role within an organised criminal group and the criminal activity of the group or individual, users could face substantial sentences of imprisonment if convicted following criminal proceedings. Whilst the status, impact and potential legal arguments that can be raised against the admissibility of “encro” evidence are currently untested, the instruction of an expert legal team at the earliest stage is essential in order to consider and raise such legal arguments.

If you are arrested or charged in connection with offences which may relate to evidence obtained from an Encrypted phone, robust legal representation from the earliest stage is essential. For further information about the comprehensive service our lawyers can offer if you are concerned about an arrest or proceedings, the author of this blog, Catherine O’Rourke can be contacted on 0345 241 5305​​​​ or enquiries@jmw.co.uk

Visit our Offences Related to Encrypted Phones service page here

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Catherine O'Rourke is an Associate Solicitor located in Manchester in our Business Crime & Regulation department

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