Intercepted Communications as Evidence: The Admissibility of Material Obtained from the Encrypted Messaging Service EncroChat
| Author | Cerian Griffiths,Adam Jackson |
| DOI | http://doi.org/10.1177/00220183221113455 |
| Published date | 01 August 2022 |
| Date | 01 August 2022 |
| Subject Matter | Case Notes |
Intercepted Communications as
Evidence: The Admissibility of
Material Obtained from the
Encrypted Messaging Service
EncroChat
R v A, B, D & C [2021] EWCA Crim 128
Keywords
EncroChat, intercept, equipment interference, admissibility, evidence
The infiltration by police investigators of the EncroChat messaging service, dubbed the “Crime Chat
Network”by major media outlets, has so far led to over 800 arrests and multiple prosecutions across
Europe. This has included members of Organised Crime Groups (OCGs) engaged in serious and signifi-
cant criminal offending. Encrypted digital data platforms are legal and there can be genuine and legitim-
ate motivations for their use however, the potential benefits of encrypted platforms for organised crime
have not gone unnoticed by OCGs and criminal enforcement agencies. One such platform was
EncroChat. The EncroChat system utilised software on Android handsets allowing users to engage dir-
ectly in encrypted communication with other EncroChat users through a unique identifier or “handle”.
According to Europol, by “early 2020, EncroChat was one of the largest providers of encrypted
digital communication with a very high share of users presumably engaged in criminal activity.”
(https://www.europol.europa.eu/media-press/newsroom/news/dismantling-of-encrypted-network-sends-
shockwaves-through-organised-crime-groups-across-europe, accessed 22.05.2022).
The present case arose from the infiltration of the EncroChat system, and the subsequent gathering of
material on the platform by French and Dutch law enforcement agencies. At some point in 2019 French
authorities developed the capability to infiltrate the EncroChat system under ‘Operation Emma’,
described in the judgment as follows:
…the EncroChat servers were in France and the French Gendarmerie had discovered a way to send an implant
to all EncroChat devices in the world under cover of an apparent update. That implant caused the device to
transmit to the French police all the data held on it. This was called the Stage 1 process …. Thereafter, in
the Stage 2 process, the implant collected messages which were created after Stage 1. The Stage 2 collections
occurred after what was called “the infection”, which was the point at which the implant first arrived on the
device and executed Stage 1. (at [12]).
EncroChat became aware of the existence of this implant on 13th June 2020 and advised its users to
throw away their handsets as “Today we had our domain seised illegally by government entities(s) [sic]”.
Contrary to EncroChat’s protestations of illegality, it was accepted in the present case that “all of the
necessary legal instruments [were] in place”(at [13]) to ensure that the extraction of material from com-
promised devices was lawful under French law. A Joint Investigation Team (JIT), coordinated by Europol
and involving French and Dutch investigators gathered data from the EncroChat system (‘EncroChat
material’) from the 1st April 2020 until the 13th June 2020.
Case Note
The Journal of Criminal Law
2022, Vol. 86(4) 271–276
© The Author(s) 2022
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DOI: 10.1177/00220183221113455
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