UK Tribunal Finds Crime Agency’s Hacking Warrants Lawful

Judges rule National Crime Agency did discharge 'duty of candour'

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)

Three judges have rejected an appeal against the way the National Crime Agency (NCA) obtained a warrant to use data from a hack of an encrypted phone network.

In its ruling, the Investigatory Powers Tribunal (IPT), led by Mr. Justice Edis, declared the warrant was “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.”

French police hacked into an EncroChat server in Roubaix, near Lille, between March 2020 and June 2020.

Data was passed to the NCA which launched Operation Venetic. Hundreds of people have subsequently been convicted of offences ranging from possession of Class A drugs to firearms offences and conspiracy to murder.

In May 2022, Paul Fontaine, 36, and Frankie Sinclair, 34, were convicted of conspiracy to murder after a jury at the Old Bailey accepted evidence that linked Fontaine to an EncroChat handle called Usualwolf and Sinclair to the NudeTrain handle.

Paul Fontaine (L) and Frankie Sinclair, pictured in police mugshots taken in November 2020. (Metropolitan Police)

Judges heard a three-day appeal in December against the granting of a Targeted Equipment Interference (TEI) warrant, which the NCA obtained on March 25, 2020, in order to access up to 9,000 EncroChat devices in the UK and investigate the owners of those devices.

Lawyers for 10 targeted individuals said the NCA knew the French gendarmerie’s hack of EncroChat, known as Operation Emma, was a live intercept—something the NCA denies—and should have requested a Targeted Interception warrant but that would not have allowed the evidence from the encrypted devices to be used in an English or Welsh court.

Hundreds of people jailed based on evidence from EncroChat—including Fontaine and Sinclair—could have had their convictions overturned if the NCA’s original TEI warrant for Operation Venetic was set aside.

Many more are still awaiting trial or are under investigation.

On the first day of the hearing an NCA officer, Emma Sweeting, denied deleting a vital document relating to Operation Venetic and said her failure to disclose a second document, a rolling note of a meeting she had with Jeremy Decou—the senior investigating officer in the French police—was a “complete error.”

Simon Csoka, a barrister for some of the EncroChat appellants, said there had been a “closed mind” conspiracy and described the NCA as having a “three wise monkeys” approach to the French hack.

But five months later the 50-page judgement appeared to present a victory for the NCA.

However, the judges rejected the NCA’s assertion that the opinion of Professor Ross-Anderson—who said it appeared to have been a live intercept—was “irrelevant.”

An image of a gun and a wad of notes sent on the EncroChat network in March 2020. (Metropolitan Police)

The tribunal said: “It is clear that a TEI 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.”

Judges Reject ‘Closed Minds’ Conspiracy Claim

The judges rejected arguments the NCA had a “close-mind” conspiracy saying, “We accept that NCA officers would have had a preference the data be material capable of being admitted in criminal proceedings, but are not satisfied that they, or any particular officers, had closed their minds on that matter before the Europol meeting.”

The judges said, “It is declared that the NCA was not required, by reason of section 9 of the Investigatory Powers Act 2016, to obtain a targeted interference warrant in order lawfully to acquire EncroChat data.”

They added, “The NCA was not required to obtain a bulk equipment interference warrant in order lawfully to obtain EncroChat data.”

The judgement also said, “It is declared that the tribunal does not have jurisdiction in relation to the question of whether the EIO [European Investigation Order] was made lawfully.”

Prime Minister Rishi Sunak talking to two unidentified National Crime Agency officers during a visit to the agency's London headquarters on Dec. 13, 2022. (PA)

Edis and the other judges also referred the issue of “admissibility of EncroChat data” back to Manchester Crown Court and Newcastle Crown Court, where further trials are pending.

The judges ruled the evidence “demonstrates that the UK authorities did not know how the [French] operation was to be carried out.”

In January, The Epoch Times spoke to several people charged on the basis of EncroChat evidence only who, though they insisted they were innocent, were coming under intense pressure from their lawyers and their family to plead guilty.

On Thursday, Anthony Anderson, a single father from Northamptonshire, said he was facing a “chat-only” prosecution.

Anderson faces a trial next year for drug dealing which was, he says, is based only on an EncroChat phone being attributed to him.

Anderson told The Epoch Times: “They say I ran an operation which made a profit of £100,000 a month. All this they said I did between doing a school run and ironing.”

He said the prosecution had failed to prove he was co-located with the EncroChat phone they have attributed to him.

Anderson is adamant he is innocent but he said, “I know that if I am found guilty, I will get a sentence much bigger than those people who are actually caught with drugs.”

The claimants are expected to appeal to the Court of Appeal in London.

The Epoch Times has reached out to counsel representing the claimants but has not received a reply.

Names of individuals have been changed to protect their identities and to prevent the UK’s Contempt of Court Act being breached.