BSQ Briefing on Encrochat Prosecutions in 2024: Part 1 - The French Police's Covert Operation

BSQ’s expertise in handling high-profile cases involving serious crimes have seen us at the forefront of legal challenges involving Encrochat evidence. BSQ partners Goran Stojsavljevic and Roger Sahota, both experts in this field, offer an insight into the current landscape of legal challenges to Encrochat evidence in 2024, marking four years since the “live” Encrochat hack occurred.

In the first of two articles, BSQ surveys the background to the Encrochat investigations and prosecutions which have resulted in hundreds of prosecutions for Conspiring to Supply and Import Drugs offences in the UK as well as other serious conspiracy and substantive criminal offences. In part 2 of our briefing, BSQ will examine the key legal issue that has been raised in the ongoing legal appeals concerning Encrochat evidence. 

The April Fools' Day Sting 2020

April Fools Day 2020 is a memorable landmark in the history of European law enforcement. It is the date when users of the encrypted messaging service provided on Encrochat handsets received what appeared to be a routine software update on their phones. Unbeknownst to them this update actually facilitated the remote installation of a Trojan implant tool by the French police. Although the choice of April 1st may have been coincidental, it is more likely that it was intentionally selected by someone within the French police with a keen sense of humour.

Earlier, in December 2018 and October 2019 the French authorities had first secretly hacked into and obtained a copy of the data on the Encrochat server located in Roubaix. By April's Fools Day 2020 what they had found had given them the evidence they needed to persuade French Judges to give them the legal power to infiltrate the platform.

Encrochat Overview: A Secure Communication Platform

An Encrochat phone operates much like any other mobile device but with a special feature: it can run an Android system alongside an encrypted messaging platform, allowing for covert communications and calls. Users could set messages to automatically delete and had the option to wipe all data from the device by entering a special PIN code or after repeated incorrect password attempts.

These phones were available for purchase online with a six-month subscription for approximately €1600 each. It is estimated that there were around 60,000 Encrochat users worldwide, with many being utilized by organized crime groups seeking to maintain secrecy around their activities and around 9,000 based in the UK.

While details of the exact technology employed by French law enforcement remains undisclosed (see discussion below), their Trojan implant intercepted all messages sent or received after the phones were updated until June 13 2020. Additionally, messages stored in the device's memory (which retained data for up to a week) were also accessed. This intercepted data was forwarded to the French police's digital crime unit (C3N). Subsequently, this information was shared with Europol and eventually obtained by the UK's National Crime Agency (NCA) through a European Investigation Order application.

The Aftermath: Raids, Arrests, and Prosecutions Across Europe

Subsequently, for over two months, from April 1 to June 13, 2020, French police covertly listened in on and monitored messages and calls exchanged via Encrochat devices without the users' knowledge. This surveillance came to an abrupt end on June 13, 2020, when Encrochat became aware of the police intrusion and issued a warning to all users to discard their phones immediately.

 Today we had our domain seized illegally by government entities(s)... 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”

Since the French police shared the intelligence they harvested from the Trojan implant (and their earlier hack of historical data stored on the Encrochat servers) with their European counterparts, thousands of arrests have been made of suspected members of organised criminal networks involved in drugs smuggling, money laundering other forms of serious and violent crime including murder, extortion robbery and grievous body harm.

Numerous court cases and prosecutions have ensued. In the UK alone, as of 2023, approximately 950 convictions, mostly resulting from guilty pleas, have been secured as part of the UK National Crime Agency's (“NCA”) “Operation Venetic”. Additionally, around 1,800 individuals are awaiting trial. Encrochat was assessed by the “NCA to be the most prolific ‘criminally dedicated secure communications’ platform in the UK with an estimated UK user base of 9000…and a worldwide use base in excess of 50,000.” The NCA also asserts that many potential threats to life have been averted as a result of this operation.

The UK Authorities Involvement

The involvement of UK authorities in the EncroChat investigation began in earnest on January 22, 2020, when lawyers from the NCA and Crown Prosecution Service (CPS) attended a Eurojust meeting in the Hague. During this meeting, they were told that French authorities had developed the capability to intercept communications on the EncroChat platform.

Following this, there was a series of meetings between UK and French officials including those between February 19 and 21, 2020 when NCA officers attended a meeting at Europol to discuss the interception of EncroChat communications.

Subsequently, the NCA sought access to the intercepted communications obtained by the Joint Investigation Team (JIT). On March 5, 2020, a Judicial Commissioner approved a targeted equipment interference (TEI) warrant under Part 5 of the Investigatory Powers Act (IPA). Following this, on March 11, 2020, the CPS served a European Investigation Order (EIO) on the French authorities, requesting the production of the EncroChat interceptions.

However, due to certain deficiencies in the initial TEI warrant, the Director General of the NCA requested its revocation. A second TEI warrant was then approved by Sir Brian Leveson, the Investigatory Powers Commissioner, on March 26, 2020, addressing the shortcomings of the initial warrant.

What transpired during the Europol and Eurojust meetings between UK and French officials January and February 2020 was to become the focal point of defence challenges to the admissibility of Encrochat evidence and will be considered in Part 2 of our briefing.

BSQ has extensive experience in handling serious and organized crime cases, with a proven track record of successful outcomes for our clients.

Please call our London offices on 0203 858 0851 if you require further support and would like advice from leading criminal defence solicitors in relation to an investigation into allegations of Encrochat related offending or serious and organised crime allegations.