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A Guide to Encrochat and the Law

When smartphones were invented, it initially seemed like there were thousands of more secure ways to chat than previously. However, this is no longer the case with police forces now able to infiltrate many supposedly encrypted applications through ‘backdoors’ in the technology. EncroChat is one example of a supposedly secure way to communicate via mobile phone that lured users into a false sense of security. EncroChat was not just any type of encrypted communication. Unlike popular encrypted apps such as WhatsApp and Telegram, EncroChat was apparently mainly used by organised criminals. The high price of their handsets and the accompanying service fee suggests that only individuals who required the highest level of privacy, and who had money to spend on it, could afford to use the service. As a result of UK police gaining access to the encrypted handsets produced by EncroChat, many members of organised crime groups are now being prosecuted. If you are concerned that this could affect you, read on to understand more about police activities in relation to EncroChat.

What is EncroChat?

EncroChat produced adapted mainstream handsets that use encrypted communication. Their products first emerged around 2015/2016 and were infiltrated by police in 2020. They are no longer in use.

EncroChat handsets have a special operating system and encrypted messaging software installed on them. They have two modes, one that turns the phone on as a dummy Android screen, and another secret mode that enables the user to access encrypted content.

EncroNotes was a facility that allowed users to make encrypted notes on their device. The service could run on certain Android, Samsung, and Blackberry devices. Some handsets are set up so that they can only communicate with other phones on the network. These handsets often have additional features that make them more secure, such as hardware or software that enables rapid and sometimes remote removal of data. This was achieved through what is known as a ‘panic button’. If you entered a specific code, all messages were deleted from the phone. These handsets did not have microphones, cameras, or GPS systems. This made it more difficult for the police to use technologies that could intercept communications on the handsets.

EncroChat was popular with individuals involved in criminal activities because these facilities helped them to avoid police detection. In particular, EncroChat phones were used by drug dealing gangs who often rely on mobile communication to organise and carry out their activities. This includes the sale of and distribution of drugs, organising money laundering, and arranging violent attacks against rival gang members.

Some say that there is no evidence that EncroChat handsets were  developed with criminal purposes in mind; in fact, they may have been developed to protect the interests of security conscious celebrities. However, others suggest that criminal organisations helped to finance the development of the service. Whether or not this is true, it is undisputed that the way in which the EncroChat company operated was unlike a usual technology company. When phone handsets were purchased by EncroChat customers, they were distributed secretively. For example, in Northern Ireland, an ex-military operative was involved in providing purchased phones to customers. Police forces claim that a large percentage of EncroChat’s users were involved in criminal activity.

How was EncroChat discovered by law enforcement?

In 2017, the French police realised that EncroChat was being used by organised criminals. The English police later found themselves on the wrong side of an EncroChat phone in 2018 during the trial of Mark Fellows, a professional hitman. The National Crime Agency tried to unlock the phone of one of the suspects involved only to find that its contents were wiped after a set number of attempts. Nonetheless, information from EncroChat was important evidence in securing Fellows’ convictions the murders of gangsters John Kinsella and Paul Massey.

In 2019, European police forces began to collaborate to infiltrate EncroChat’s servers and received funding from the European Union. Information was shared between England, France, the Netherlands, Sweden and Norway. The English aspect of the police operation was known as Operation Venetic and was run by the National Crime Agency. There was also a separate operation known as Operation Eternal run by the Metropolitan Police. These operations led to hundreds of arrests taking place.

The areas in which EncroChat infiltration led to arrests were London, Kent, Essex, East Anglia, Liverpool, and the West Midlands. There were also seizures of large quantities of drugs and cash in Scotland.

In 2020, the National Crime Agency and other European law enforcement agencies worked together in order to crack EncroChat’s encryption. They installed a piece of malware upon an EncroChat user’s phone which allowed police to access the contents of millions of messages sent via the EncroChat service. EncroChat estimated that 50% of messages sent on its servers were accessed by the police. The malware allowed police to read messages before they were sent and to ‘read’ the lock screen password. It also allowed police to disable the lock screen from a distance. Once EncroChat realised it had been hacked, it sent a message to its users advising them to turn off their phones and dispose of their devices. However, by this time it was too late and the privacy of EncroChat’s users had been severely compromised.

Who has been convicted as a result of EncroChat being infiltrated?

There have been several high profile arrests as a result of EncroChat communications being accessed. In the Netherlands, six men were arrested in 2020 after the police used EncroChat communications to find shipping containers that had been converted into torture cells and that were to be used against rival gang members. These were just some of more than 100 arrests made by the Dutch police as a result of EncroChat. The Dutch police claim to have recovered €20 million; more than 8000kg of cocaine and 1200kg of crystal meth, as well as firearms and high value items such as watches and cars.

According to European police forces, criminal gangs have used the EncroChat service to plan money laundering, and the enforcement of drug debts including acid attacks, and chopping off limbs. Accessing the EncroChat service has also enabled police forces to discover at least 19 synthetic drugs laboratories.

At the time that EncroChat closed business, it had approximately 60,000 users worldwide and 10,000 in the UK. In the UK, over 700 people have been arrested as a result of infiltrating EncroChat communications. The police have seized 77 firearms and two tonnes of drugs. They have also recovered £54 million in cash obtained through unlawful means. As these statistics show, many of the crimes that have been revealed through EncroChat are very serious, and those convicted will face hefty custodial sentences.

Are you at risk of criminal prosecution for using EncroChat?

It is not illegal to possess or use an encrypted handset. You cannot be convicted of an offence just for possessing an EncroChat phone or sending messages on it. However, if you have used the handset in order to conduct or plan unlawful activities, it is possible that the police have accessed the content of your messages and you could be liable to prosecution.

If you are concerned that your messages have been read by the police, but you have not heard anything from them, it is possible that the police are not actively investigating your case, but there is no guarantee of this. There is no time limit on the prosecution of either way or indictable only offences, therefore charges could be brought at a later stage.

As with any other criminal investigation, if the police suspect you in relation to an offence you will probably either be arrested or invited to a voluntary interview under caution at the police station. At this stage, it is likely to be of great assistance to you to have a well-qualified criminal defence solicitor by your side. Regardless of the evidence within the messages, the prosecution is still required to prove their case beyond reasonable doubt in order to convict you.

A good criminal defence solicitor will be able to advise you on the strength of the evidence against you in order to help you decide on the best approach to responding to the police’s questions. It is important to get good advice at an early stage in order to avoid adverse inferences from your failure to mention information which later proves to be crucial to your defence.

Where to get further help?

If you have been in possession of a compromised EncroChat device, you may be feeling concerned about the possibility of a criminal prosecution. At Stuart Miller Solicitors, we understand the seriousness of the charges that individuals connected with EncroChat devices could be facing. Our experienced team of lawyers are ready to represent you. We will provide you with considered advice, and if you intend to plead not guilty, we will advise you in respect of the defences available to you in law. Contact us for a no obligation consultation today.

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