Encrochat & Encrophone Legal Experts
Encrochat is a brand of high-security mobile phones that offer their users anonymity when sending and receiving any mobile communications. The phone, and the applications that come with it, boast highly sophisticated encryption technology that promises to give users complete control over the privacy of their messages and calls.
These phones, and its competitors, were initially developed as a way for high-earning individuals to secure peace of mind when using their phones. Key features of Encrochat products include dual operating systems, global use across 120 countries and security features that make erasing data as simple as sending a text or entering a password.
In Encrochat’s own words, using their device was intended to be ‘the same as talking between two people in an empty room’. They promised their clients ‘future privacy in order to remain satisfied’. Unfortunately, developments in 2020 suggested that this technology was not as air-tight as previously thought.
June 2020 – Encrochat is hacked and its users are exposed
A message was sent out on June 12th 2020 to Encrochat users explaining that there had been a major breach stating:
“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. Period of compromise was about 30 minutes and the best we can ascertain was about 50% of the carbon devices in Europe (due to the Updater schedule).”
A source from the encrypted phone industry made a statement to the media suggesting that numerous arrests were made off the back of this breach alone.
Within hours of the breach Police across the United Kingdom were engaged in search and arrest operations, which have resulted in a number of people appearing before the Courts with further arrests expected in the future.
R v C  – First legal developments
The first EncroChat trial in 2020 resulted in the court 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.
However, Mr Justice Dove ruled that the EncroChat data concerned in the case was admissible, and did not fall to be excluded under section 78 Police and Criminal Evidence Act 1984. The argument was made, unsuccessfully, that EncroChat messages were intercepted as opposed to being recovered from storage in handsets.
R v A B D & C  – The Court of Appeal’s findings
The finding in R v C was upheld at a later date by the Court of Appeal. A comment from the Court of Appeal stated that:
“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.”
As it stands, according to the Court of Appeal, there is no point of law of general public importance that would justify referring their decision to allow intercepted communications (such as EncroChat data) to be used as evidence to secure convictions in criminal cases. In other words, it was found that the evidence was collected lawfully.
The final word on EncroChat Evidence?
Since the first Encrochat arrests, managing partner and of Cobleys Solicitor, Paolo Martini, has been working very closely with the barristers most involved in the fight against the admissibility of the Encrochat evidence.
Paolo spoke with Mr Rupert Bowers QC (Barrister at Doughty Street Chambers) on the topic. This is what he had to say on the matter:
“The current judgment of the Court of Appeal, which refused leave to appeal to the Supreme Court, is very unlikely to be the last word on the admissibility of the EncroChat evidence…The situation is fluid and evolving day by day. It seems nothing is certain in this context at present.”
Paolo concurs with Rupert’s comments adding:
“Everybody involved in Encrochat prosecutions knows of the gaps in the evidence. And there will always be credit available to those who ultimately plead guilty. Surely judges have to have some sympathy for those defendants who delay their plea until we actually know for sure what the admissibility of this evidence will be?”
How We Can Help
Whilst it isn’t illegal to use devices such as Encrochat to secure your communications, recent events have highlighted that they cannot always be relied on, despite their cost.
The Police and the Crown Prosecution Service will now need to provide clarity on the lawful basis used to breach this network and seize information as potential evidence. This is significant since this case will be the first significant prosecution where ambitious use of equipment interference has been deployed.
Paolo Martini of Cobleys Solicitors has helped defend clients who have found themselves exposed when Encrochat devices have been hacked and is an expert in cases where these devices are involved.