A French court ruling earlier this week has been lauded as a “milestone victory” by campaigners and could have devastating consequences for hundreds of convictions which the National Crime Agency (NCA) has obtained in Britain.
The Criminal Division of the Court of Cassation on Tuesday quashed the judgment of the Nancy Court of Appeal in the case of Saïd Zaoui, who was arrested in June 2020 and indicted on charges of importing narcotics and possession of weapons and ammunition.
The investigative technique used by the French police came under the category of national security, which prevented defence lawyers and the accused from knowing the details of how the hack was performed.
But under French law there must be a “certificate of truthfulness” when national security is involved.
Wife of EncroChat Accused Speaks Out
Debbie Johnson, whose husband is awaiting trial on the basis of EncroChat evidence, welcomed the French court’s ruling and told The Epoch Times: “I can feel it in my heart that this will help those who have been accused by the NCA. My husband is facing years in jail for drugs offences but he is innocent.”On Thursday a court in Berlin reportedly suspended all EncroChat cases in Germany until after the European Court of Human Rights adjudicates in ongoing appeals.
Between March and June 2020 the French police obtained access to more than 120 million encrypted messages after hacking into the EncroChat server.
They shared what they had found with law enforcement agencies across Europe, including the NCA in Britain, which has made almost 3,000 arrests based on EncroChat evidence.
More than 300 people have been convicted as a result of Operation Venetic, which the NCA launched, armed with evidence from EncroChat.
But there has always been a question mark about whether the EncroChat evidence was data, like emails and text messages, or whether it was the equivalent of phone tapping evidence—which is inadmissible in courts in England and Wales.
The Irish police, the Garda Siochana, chose not to arrest or prosecute anyone and use the EncroChat evidence they received from the French simply as intelligence.
The evidence leading to Zaoui’s arrest stemmed from a French police hack of an EncroChat server in Roubaix, northern France, and on April 30, 2020 the public prosecutor in Lille sent it to his counterpart in Nancy.
The evidence came from one of four encrypted EncroChat phones being used by individuals using the pseudonyms Elegantcrocodile, Franceconnection, Dashingclener, and Shockinggiant.
French Lawyer Insists EncroChat Data ‘Illegal and Inadmissible’
In a statement, Robin Binsard, the French lawyer who represented Zaoui, said, “We will therefore continue our fight before this court to obtain the cancellation of these data collected in defiance of the most fundamental principles of criminal law.”“In the meantime, we invite our colleagues across Europe to pursue their appeals and to argue that the evidence from EncroChat is illegal and inadmissible,” Binsard added.
At a recent Investigatory Powers Tribunal hearing two NCA officers and a former officer gave evidence about what discussions there had been with the French police prior to the granting of Targeted Equipment Interference warrants, which the NCA obtained on March 25, 2020, in order to access up to 9,000 EncroChat devices in the UK and investigate the alleged owners of those devices.
The tribunal is due to conclude the evidence-taking part of the hearing in December and may not make a final ruling until early in 2023.
The NCA told The Epoch Times it would not comment on the French court’s ruling.
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