A number of arrests have been made in recent days in the UK and across Europe as a result of law enforcement agencies gaining access to an encrypted phone network called EncroChat which is allegedly widely used by criminal networks.

The National Crime Agency (NCA) has made over 700 arrests in the UK with their French and Dutch counterparts also making widespread arrests in mainland Europe.

Hamraj Kang of Kangs Solicitors discusses the recent events and the long-term implications for clients who were subscribers to the EncroChat network.

It is understood that the NCA has targeted urgent cases at the outset which involve life threatening situations including murder, drug trafficking and kidnap.

It is believed that the data has been shared with HMRC and this is likely to lead to numerous additional arrests involving fiscal matters such as tax evasion, VAT fraud, duty evasion and money laundering.

If you are concerned that you could be targeted by law enforcement agencies as a result of using such an encrypted phone, it is important to seek early legal advice. We are a top ranked firm for criminal work by both the leading law directories Chambers & Partners and the Legal 500.

Our team of cybercrime and crime defence solicitors is experienced in advising clients in relation to the admissibility of evidence obtained from telephone intercepts and will be happy to assist you.

For an initial no obligation discussion, please call our Team at any of our offices detailed below:

What is EncroChat? |  Kangs Cyber Crime Defence Solicitors

EncroChat was one of the largest providers of encrypted phone communications and offered a secure mobile phone instant messaging service.

It is estimated that there were 60,000 users worldwide and around 10,000 in the UK.

What is an EncroPhone? | Criminal Defence Solicitors

Encrypted phones or ‘EncroPhones’ are not illegal. Being in possession of one is not a criminal offence.

EncroChat sold encrypted phones loaded with private messaging apps and an emergency PIN code that enabled the phone to be wiped clean in an emergency. Conventional apps such as GPS and camera/microphone functions were usually stripped out of the encrypted phone.

The key marketing tool for an EncroPhone was anonymity and a hidden operating system which enabled secret messaging. In addition, the device could be wiped clean remotely which would be of benefit if the device fell into the hands of, for example, law enforcement agencies.

Who Operated EncroChat? | Criminal Fraud Solicitors

It is not known who operated EncroChat. An email address associated with EncroChat recently announced that it was closing down its operation after being hacked by law enforcement agencies.

In June 2020, EncroChat sent a text message to all of its users to advise that its security had been compromised by law enforcement agencies and advised customers to dispose of their EncroChat devices.

At this stage, EncroChat itself is not accused of any criminal activity but law enforcement agencies are focussing on criminals who used its platform.

How Did EncroChat Operate? | Kangs Solicitors

EncroChat hosted the devices on their own servers. Subscribers paid significant fees for the EncroPhones.

It is suspected that a high proportion of the customer base were Organised Criminal Groups (OCGs) with high frequency use in locations associated with cocaine and cannabis destination and source countries as well as hotspots for money laundering activity.

It is also likely that some non-criminal worldwide users such as high net worth individuals and those in the public eye, who valued privacy, are amongst the 60,000 worldwide users.     

How Was EncroChat Infiltrated? | Criminal Defence Solicitors

It is believed that the French authorities were first alerted to the encrypted messaging system in around 2017 when they repeatedly seized EncroPhones as part of their criminal investigations.

EncroChat was being operated via servers in France. The French authorities managed to put in place a ‘technical device’ which allowed access to the encrypted messages over the secret network. No further details of the ‘technical device’ have emerged but the activity appears to be akin to a ‘hack’ rather than a method of de-encryption.

The information was shared between French and Dutch authorities and via Europol to other law enforcement agencies including the UK.

The Position in the UK | NCA Operation Venetic

The lead law enforcement agency in the UK working on the EncroChat data is the NCA under the investigation name of Operation Venetic.

The NCA has confirmed that to date 746 arrests have been made, £54 million in cash seized, 77 firearms and 2 tonnes of drugs seized.

The data that has been shared across Europe has enabled the NCA to monitor and analyse millions of messages and hundreds of thousands of images with over 500 NCA officers deployed on Operation Venetic.

The NCA has described it as ‘…the broadest and deepest ever UK operation into serious organised crime….to any criminal who uses an encrypted phone, you should be very, very worried.’

What Is The Legal Position? | Legal Challenge To EncroChat Evidence

The law is clear. Possession of an encrypted device is not a criminal offence.

However, failure to provide a PIN code/password to law enforcement agencies can be a criminal offence which carries up to 2 years imprisonment. This will only apply if the law enforcement agency has served the user of the device with a section 49 notice under the Regulation of Investigatory Powers Act 2002 (‘RIPA’) requiring such information. If such information is not provided, the user of the device can be prosecuted under section 53 of RIPA.

Can The Data Be Used In Court? | Solicitors Challenge EncroChat Evidence

It is not clear yet how the data was obtained from the servers of EncroChat.

Whether it was obtained legally and whether the information obtained can be used in a court of law are key questions that we will explore on behalf of our clients in forthcoming cases.

We will explore arguments to test the legality of the method in which the data has been obtained. If there is a suggestion that the data has been obtained illegally, the court has a discretion to exclude such evidence.

If the data has been obtained from the servers as a result of a ‘hack’, the law enforcement agencies will need to provide further information before it can justify using this telephone intercept evidence in court.

Future Developments | EncroPhones Defence Solicitors

It is highly likely that the number of arrests made in the UK as a result of Operation Venetic will continue to rise.

In particular, the fact that non-urgent cases have not yet been prioritised means that we can expect many more arrests which will dwarf the current figure. The likely additional arrests will relate to financial crime which is not seen as ‘life threatening’ in the same way as the other offences that the NCA has currently targeted.

We anticipate a large increase in arrests for money laundering, VAT fraud, duty evasion and other white-collar offences.

Cressida Dick, the Commissioner for the Metropolitan Police 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.’

How Can We Help? | Kangs Criminal Defence Solicitors

If any of the issues raised in the article affect you or you are concerned about your use of an EncroPhone, it is advisable to seek early advice before you are contacted by any law enforcement agency. We can explain your rights to you and provide you with guidance on any likely future action.

We are experienced in:

  • advising clients before any arrests are made
  • explaining the search and seizure powers of law enforcement agencies such as the NCA and HMRC
  • assisting clients during a search of their premises including advice on the legality of any search or search warrant
  • representing clients in interviews under caution with NCA and HMRC
  • representation before the criminal court to include the instruction of the leading barristers in the country
  • working with telecommunications experts to challenge the admissibility of telephone evidence

A Reputation Built on Trust and Expertise | Criminal Law Experts

Since 1997 we have been here to assist our clients, both established and new ones, and to provide positive solutions to whatever criminal or criminal fraud issues that may arise.

Our team of criminal solicitors is available to assist you defend the full range of criminal allegations including those involving complex factual issues and multi-jurisdictional legal issues.

Our team of white-collar criminal solicitors has a proven track record of defending the most complicated and high-profile fraud allegations. The team has represented corporate and individual clients in many of the leading criminal investigations over the last two decades.

Our aim is to instil a sense of calm in our clients, provide forthright and frank advice, and above all, provide our clients with practical solutions.

How Can I Contact You? | Kangs Solicitors

Hamraj Kang leads an award-winning team of solicitors nationally reputed for its excellence in criminal and fraud investigations of every nature.

We welcome new enquiries by telephone or email.

Our team of lawyers is available to meet at any of our offices in London, Birmingham or Manchester or, alternatively, we are happy to arrange meetings via video conferencing.

For initial enquires please contact:

Hamraj Kang
hkang@kangssolicitors.co.uk
07976 258171 | 020 7936 6396 | 0121 449 9888

John Veale
jveale@kangssolicitors.co.uk
0121 449 9888 | 020 7936 6396 

Tim Thompson
tthompson@kangssolicitors.co.uk
0161 817 5020 | 0121 449 9888