But a senior barrister and King’s counsel (KC) with intimate knowledge of the EncroChat affair has told The Epoch Times he believes the legal establishment will find an “intellectually dishonest” means of preserving the convictions.
In spring 2020 French police broke the encryption used by EncroChat and obtained hundreds of thousands of messages from users, many of them believed to be organised criminals based in Britain.
The National Crime Agency (NCA) was granted a Targeted Equipment Interference (TEI) warrant on March 25, 2020, which allowed it to access up to 9,000 EncroChat devices in the UK.
Each device had a cryptic handle, such as Usualwolf, and by attributing the handles to individuals the NCA and its partners hoped to be able to solve thousands of serious crimes.
The NCA launched Operation Venetic and shared the data with UK police forces, leading to thousands of arrests and convictions.
While in many cases drugs, guns, and other evidence was found which proved those using EncroChat phones were involved in criminal conspiracies, in some cases, the only evidence was messages which had been attributed to them.
Many of those who have been convicted or are awaiting trial insist the data being used cannot be tested because the NCA will not divulge exactly how the French obtained it, amid claims it was a live intercept operation, which would make it inadmissible in British courts.
The NCA denies it was a live intercept and say the hack obtained data which had been stored on the handsets.
KC Fears ‘Intellectually Dishonest’ Outcome
The senior KC, who declined to be identified, told The Epoch Times: “I am afraid my view of the live intercept issue is that even if or when it is exposed the courts will find an albeit tortuous and intellectually dishonest way round it.”“A clue to this outcome is to be found in the Crown’s argument based on ephemeral storage. A nanosecond of storage anywhere along the line from sender to receiver apparently renders the captured product lawful,” he added.
He said he felt the legal establishment’s unwillingness to challenge the way the EncroChat data were obtained would embolden the NCA to try similarly controversial tactics.
The KC said: “Absolutely. Why would law enforcement not feel emboldened?”
On Monday a defendant who has been extradited from Dubai to face serious charges, based on the NCA’s claims he was the user of a certain EncroChat phone, failed in a request to have his trial pushed back.
His barrister claimed the defendant had insufficient time to pore over 75,000 lines of EncroChat data before his trial next month.
‘Communism Painted as Democracy’
Cyrille Austin-Johnson, another alleged EncroChat criminal who also faces trial later this year, told The Epoch Times: “They see us EncroChat defendants as monsters that need to be put away no matter the cost or the cover-ups that need to be done.”Mr. Austin-Johnson said, “We are now falling into a form of democracy which is actually communism painted as democracy, where the government can produce evidence in front of a jury that is hearsay.”
“Defendants are not allowed to question it, they are not getting full disclosure and then the government is railroading people into prison, destroying their lives and taking their money based on a belief they are guilty,” he added.
Mr. Austin-Johnson said, “Even if you believe they are guilty you have to follow the law, because if you don’t follow the law it creates a state where the government are a law unto themselves and no-one has the power to challenge them and that is not democratic, that is communism.”
Martin Agnew, who is facing trial on EncroChat charges, told The Epoch Times, “This data will get broken and it will come out that it was a live interception.”
Mr. Agnew said: “I’m facing trial for supplying Class A drugs based purely on EncroChat messages. The police raided more than 20 locations and found nothing. There was no hard evidence. They didn’t even find any Encro phones.”
He denies he is the user of the EncroChat handle attributed to him but he says the prosecution will not allow his defence team to test the phone.
“When we tried to obtain our own EncroChat handset to test it, the judge said we'd be prosecuted for possessing it. They’re shutting every door,” said Mr. Agnew.
Liam Cresswell, who is also awaiting trial, told The Epoch Times, “Anyone who has followed this from the start, whether affected by it or not, can see the level of cover-up that has and is taking place.”
He said: “I know first hand from the disclosure that we have been denied for a fair trial. It’s shocking. The judges are scared to make a decision that will affect the many, so choose to brush it off and away from them as much as possible.”
“I know 100 percent, if they gave us what we needed, in terms of disclosure, they would lose the case. One hundred percent,” added Mr. Cresswell.
He said the recent revelations about the Post Office scandal—which stemmed from over-reliance on experts who insisted the Horizon software was beyond reproach—had given those facing trial on EncroChat charges hope.
“The Post Office situation has come at a good time for the likes of me and the rest of the lads fighting, with our experts. And I hope it brings truth for all the other people affected by this. It is very much the same in many ways,” said Mr. Cresswell.
Public ‘Choose Not to Believe It’
Mr. Cresswell said: “People do not want to believe that the people they trust their safety to would lie. They know deep down they do. But they choose not to believe it.”He said: “You can see it on the reporters’ faces on the TV when the Post Office victims are saying, ‘I was told to plead guilty to not go to jail.’ The reporters are looking at them like they’re lying and are mad for doing that when they are not guilty. But if you put 99 percent of joe public in a position of going to jail or not, they will sign anything.”
Mr. Cresswell said he had come under intense pressure from his own barristers to plead guilty but he maintains he is innocent and has stuck to his not guilty plea and is convinced the EncroChat hack was a live intercept, which means the evidence is inadmissible.
He said the police and the NCA are still arresting people “on a weekly basis” on EncroChat-related charges, and more and more people are pleading guilty because they are terrified of getting long sentences.
This week John Coucum, who admitted being the user of the EncroChat handle Scantscorpion, was jailed for eight years in Yorkshire for drugs offences after pleading guilty.
Mr. Cresswell said the EncroChat defendants need a “whistleblower” like the one who came forward in the Post Office case and admitted Fujitsu was able to remotely alter Horizon, years before the company finally admitted it.
Last month the NCA’s former director of investigations, Nikki Holland, was fired after an internal disciplinary panel found she had committed gross misconduct. Ms. Holland is believed to have been the officer who approved the EncroChat operation.
The NCA said: “While the panel did not find any malign intent in the breaches, the NCA expects the highest standards of conduct from all of our officers. Where those standards are not met appropriate action will be taken.”
Mr. Johns said: “So far there’s over 1,000 offenders convicted as a consequence of the data, over 3,000 people arrested ... over 200 threats to life averted ... 173 firearms have been seized across the whole of the UK, over 300,000 rounds of ammunition have been seized.”
He said the EncroChat operation has also led to the seizure of six tonnes of cocaine, three tonnes of heroin, 14 tonnes of cannabis, and more than £80 million in cash.
Asked about the TEI warrants, Mr. Johns told the podcast, “I’m not going to get into anything out of the warrants as there are a number of cases which are ongoing still which are subject to reporting restrictions.”
