Leaked Letter Adds to Debate Over EncroChat Evidence

Campaigners against the National Crime Agency's use of data hacked from EncroChat by French police protest outside the Old Bailey in London on May 27, 2022. (Chris Summers/The Epoch Times)

A leaked letter from a French magistrate to the Crown Prosecution Service (CPS) about the potentially unlawful hacking of an encrypted phone network has been released.

Campaigners are pushing for tests to be carried out to prove their claim the encrypted network, Encrochat, was hacked in a “live intercept” operation, which could lead to hundreds of convictions being overturned.

Between March 2020 and June 2020, French police managed to compromise EncroChat, which stored data at the OVH server in Roubaix, near Lille.

Data was passed to Britain’s National Crime Agency (NCA), which launched Operation Venetic, which has led to more than 1,000 individuals being convicted of offences ranging from possession of Class A drugs to firearms offences and conspiracy to murder.

Several other police forces also used information from EncroChat to launch their own investigations.

One such investigation led to several men being charged with various offences but a trial at a court in the north of England has been held up by legal argument about the admissibility of EncroChat evidence.

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Now a letter has emerged. It was written earlier this month by Lydia Pflug, the first deputy presiding magistrate in charge of the EncroChat investigation at the specialised inter-regional court of the judicial court of Lille, to Kate Anderson, the CPS’s deputy chief crown prosecutor.

In the letter—seen by The Epoch Times—Pflug replies to a question by the CPS, “Were the EncroChat messages encrypted when they were captured or were they in plain text?”

French Magistrate Explains how Messages ‘Retrieved’

Pflug wrote: “The messages were retrieved from the database of the messaging application on the phone. They are decrypted by the application itself.”

“Only the database in which the plain text message is stored is encrypted, with a key that is itself contained in the phone. Consequently, no operation was carried out to decode the encrypted data. The data used were thus unencrypted and readable in plain text,” she added.

Bas Janssen, a criminal defence lawyer in the Netherlands who has worked on several EncroChat cases, said Pflug’s letter suggested the OVH server in Roubaix had not been hacked at all, as the French police claimed.

Janssen told The Epoch Times, “The implant worked on all infected phones, causing them to send all messages before encryption.”

He said the copied messages had been detoured to the police server, which “might as well have been located in Antarctica.”

Janssen said, “Despite all attempts to keep things secret from the start, it is clear the defendants have faced everything but a fair trial.”

On May 11, three judges from the Investigatory Powers Tribunal, led by Mr. Justice Edis, rejected a claim by lawyers representing a number of EncroChat defendants against the way the NCA had obtained a warrant to use data from the French hack of the OVH server in March 2020.

In their ruling, they said the warrant had been “lawfully issued” and said: “It is declared that the respondent [the NCA] did not fail to discharge its duty of candour and did not mislead the judicial commissioner [Sir Brian Leveson] when it sought approval of the warrant from the judicial commissioner.”

But in a key paragraph, the judges also rejected the NCA’s assertion the opinion of Professor Ross Anderson—who said it appeared to have been a live intercept—was “irrelevant.”

They said: “It is clear that a Targeted Equipment Interference warrant cannot authorise conduct in relation to communications other than stored communications … It follows that we are satisfied that it will be necessary to determine whether the interception was of communications in the course of their transmission.”

Priti Patel Took Part in EncroChat Raid

In August 2022 the then Home Secretary Priti Patel, accompanied officers from the NCA’s Operation Venetic when they raided a property in Surrey and arrested Waqas Iqbal and Raj Singh.

The Home Secretary Priti Patel (R) accompanies National Crime Agency officers during the arrest of EncroChat suspects in Surrey, England in August 2022. (National Crime Agency)

Last month Iqbal—whose EncroChat handle was Ghostshooter—was jailed for 12 years after pleading guilty to conspiracy to import 10 kilograms of cocaine, conspiracy to transfer a prohibited weapon and money laundering. His associate Raj Singh got eight years.

Patel’s successor Suella Braverman appears equally committed to Operation Venetic and in January, the Home Office issued a consultation document in which it suggested making it a criminal offence to even possess an encrypted device.

The measure said “sophisticated encrypted communication devices used to facilitate organised crime” would be criminalised.

In her foreword to the consultation, Braverman said: “Criminals have been resilient in the face of the coronavirus pandemic and are increasingly exploiting online spaces, emerging technologies and commercially available tools to avoid detection and circumvent our legislation.”

While in many cases the NCA and other police forces found drugs, guns and other evidence which proved those using EncroChat phones were involved in criminal conspiracies, in some cases the only evidence against people was messages on EncroChat which had been attributed to them.

In January, The Epoch Times spoke to several people whose loved ones were facing “chat-only” prosecutions despite never having been found in possession of drugs or guns or even an EncroChat phone.

Most EncroChat cases would be undermined if the tribunal upholds the appeal and sets aside the warrant, but only if the defendants have maintained their innocence throughout.

Those who plead guilty will not be able to appeal.

Kate Anderson, Deputy Chief Crown Prosecutor at the CPS, said in an emailed statement to The Epoch Times, “The CPS has a duty to ensure cases are properly put before the courts, and whenever our legal test is met we will not hesitate to prosecute.”

She added: “Under Operation Venetic, more than 2,000 individuals have been charged as a result of material obtained from the criminally dedicated communications platform EncroChat. There has been 1,015 successful prosecutions so far, with 1,265 defendants still awaiting trial in ongoing criminal proceedings.”

“This evidence has enabled UK law enforcement to arrest over 3,000 suspects, seize 6,450 kilograms of cocaine, 3,030 kilograms of heroin, 14,422 kilograms of cannabis, 172 guns, 3,462 pieces of ammunition and £79.18 million in cash. This has made a substantial contribution to the fight against serious and organised crime in the UK,” Anderson concluded.