ENCRO LEAKS: Top QC told CPS of 'risk warrants to obtain encrypted data could be unlawful'
EXCLUSIVE: A TOP QC told prosecutors there was a "substantial risk" that warrant applications to obtain messages from the encrypted mobile phone system Encrochat, could be seen by a court as unlawful, a leaked document shows.
Lord Anderson QC (pictured above) was asked by the Crown Prosecution service (CPS) to review two warrant applications made by the National Crime Agency (NCA) in early 2020 to obtain Encrochat message data from French and Dutch police who hacked the encrypted system last year.
The hack led to the UK's biggest ever operation against suspected organised criminals under the banner of the NCA's Operation Venetic.
It has so far seen more than 1,500 arrests and scores of raids and seizures of drugs, cash and firearms across the UK in a series of unconnected operations across the country that have led to hundreds of charges.
Last April Dutch and French investigators broke through the encryption of the supposedly secure Encrochat encrypted phone communication platform which was being used by around 50,000 people worldwide, including about 9,000 in the UK.
They allowed police forces across Europe, including in the UK, access to the previously sent and new "real time" messaging between suspected organised crime groups before the raids started.
Encrochat shut itself down when it discovered the hack in June after people began being charged.
The NCA has continued to make arrests and charge people under Operation Venetic while the legal challenges rumble on.
Three people were charged after an amphetamine lab (pictured above) was found near Redditch on Tuesday (April 27).
John Keets, 40, of Middle Meadow, Chalfont St Giles, Buckinghamshire; Keith Davis, 60, of Brayfield Lane, Chalfont St Giles, and Andrew Gurney, 50, of Middle Meadow Avenue, Quinton, Birmingham, were charged with various offences around the supply and production of drugs.
All three were due to appear at High Wycombe Magistrates’ Court yesterday (April 29).
A 28-year-old woman and 36-year-old man – arrested at a building on the same site as the lab on Ullenhall Lane – have been bailed.
An NCA spokesman said: "Members of the organised crime group were believed to be running the drugs operation using the encrypted phone network EncroChat.
"The NCA believes they were producing around one tonne of amphetamine per month – worth £2million at wholesale and up to £10million at street level – for distribution to criminals throughout the country."
In the UK the Investigatory Powers Act (IPA) allows police and HMRC to apply for a warrant to carry out "targeted equipment interference" (TEI) to hack into emails or digital messages relating to a "specific" person location or operation. A TEI warrant can also be applied for in a "thematic" sense to hack into the same for a group of people who share a common purpose of criminality, but only for a single investigation or operation.
A "Bulk Equipment Interference (BEI) warrant, to allow the interception of any whole sets of data, can only be applied for by the heads of MI5, MI6 or GCHQ in the interest of national security and only to obtain the data of people living outside the UK.
The NCA applied for a "thematic" TEI, to obtain the data, even though it was seeking access to the messages of all around 9,000 users of Encrochat in the UK.
It led to multiple investigations against unconnected suspects all under the banner of the NCA's Operation Venetic.
A thematic TEI application should name as many people or organisations under investigation as reasonably possible.
However, the NCA did not name anyone in its TEI application.
Lord Anderson was asked to consider the lawfulness of two NCA TEI applications concerning Encrochat against the IPA.
In a legal advice statement written on May 2 2020, which has been seen by Essex News and Investigations, he said there were three arguments that could be made in court against the TEIs being lawful.
He wrote: "A thematic warrant requires a theme more cohesive and more specific than simply wishing to break into an encrypted platform.
"By defining the relevant 'investigation or operation' in terms of the penetration of a platform or network used by a vast and miscellanies group of unrelated criminals is neglecting the requirement of a target and stretching unduly the normal law enforcement (and statutory) meaning of the terms investigation or operation."
He considered if the data sought under the TEI application would have been more appropriate under a BEI warrant application as the NCA had named no individuals and admitted that the intelligence obtained would be useful for a range of subsequent investigations.
He added: "It is striking that not a single user is identified in the warrant application...
"Nor are any device identifiers specified in the warrant application."
He added: "The arguments for unlawfulness are formidable, there is a substantial risk that a court invited to find the warrants unlawful would do so and that the difficulty and public importance of the issue could be such as to engage the attention of the highest UK courts.
"I stop short, however, of advising that they would be sure to succeed."
Lord Anderson went on to say that the criminal courts would see "Venetic as a desirable tool in the fight against serious and organised crime" and "would be only reluctantly driven to the conclusion that there is no power to give effect to it in UK law."
He said: "These factors, while not legally determinative, would in my view incline any UK court to look as favourably as it possibly could on the arguments for characterising Project Venetic as a single investigation or operation.
"Former and serving judges as senior and highly respected as Sir Kenneth Parker and Sir Brian Leveson (pictured above) have concluded that the requested warrants are lawful."
Sir Brian is the Investigatory Powers Commissioner - the watchdog for the use of such covert tactic by law enforcers.
Lord Anderson added: "Project Venetic was of such significance as to have merited a presentation to Sir Brian on the day before the application for a warrant was made.
"It is sensible to assume that the lawfulness of what is on any view a controversial stretching of the thematic/bulk boundary has been, on this or some previous occasion, the subject of independent legal advice at a senior level, and that the legal issues were carefully considered by the judicial commissioners whose responsibility it is to ensure that warrants are lawful."
However, Lord Anderson wrote an addendum to his advice on May 28 2020 after receiving further briefing and a legal position paper from the NCA, in which he appeared to alter his stance in favour of the warrants being seen as lawful by a court.
He said the NCA position was that "all users" (of Encrochat) and the data sought was of interest to it "at the time the warrant was signed."
This was because the NCA said the users were "assessed to be exclusively criminal, and their communications overwhelmingly criminal in nature."
The NCA said other "encrypted platforms such as WhatsApp and Telegram could not have been subject to a thematic warrant because they 'will likely have a mix of innocent and nefarious content to a greater or lesser extent'."
The NCA said a review of data recovered from 5,600 devices found it "almost certain" all users were involved in serious and organised crime and there was no material found linked to "legal privilege, academia and journalism or privacy enthusiasts."
Lord Anderson wrote: "I am impressed by the strength of the NCA's evidence as it has been presented to me, for the exclusively criminal purpose of Encrochat devices whose interception was warranted...
"Though the legal issues summarised at para 3 above remain far from straightforward - it seems to me more likely than not that a court or tribunal which had to decide the matter would uphold the lawfulness of the warrants."
Lord Anderson's advice was disclosed to the defence in a preparatory hearing ahead of criminal trials, which cannot be identified for legal reasons, for around 15 people charged under Operation Venetic.
The preparatory hearing is looking at legal issues surrounding the hack of the encrypted Encrochat network.
The legal position paper from the NCA shown to Lord Anderson has not been disclosed during the preparatory hearing despite defence requests for it.
Other NCA disclosures seen by Essex News and Investigations suggest that the agency was alerted to some celebrities using Encrochat and the possibility of others using the system to conduct extra-marital affairs.
Separately, in Albania an investigative journalist came forward to say he had used Encrochat to communicate with criminal sources.
An earlier Encrochat preparatory hearing, that started last November and can also not be identified, challenged the admissibility of Encrochat "real-time" message evidence on grounds they were "live intercepts" which are not admissible in British courts.
The case, known as "Sub Zero," concluded at the Court of Appeal earlier this year with judges saying the real-time messages were admissible and not live intercepts as they were briefly stored on the sender's device before being received by the other user.
The Court of Appeal stopped the case being sent to the Supreme Court, but It has since emerged that Lord Anderson's advice was not disclosed to the defence during that case.
Defence lawyers in the ongoing separate preparatory hearing are still seeking further disclosures with the case adjourned until next month.
Meanwhile, sources from the defence in a number of cases have told Essex News and Investigations that the CPS is pressuring defendants to plead guilty to their charges to avoid further trials.
One source said a relative has been charged with conspiracy to supply class A drugs, but was told by the CPS it would be dropped to the lower offence of "being knowingly concerned in the supply of drugs" if he were to plead guilty as soon as possible.
A separate defendant has lodged a challenge with the Investigatory Powers Tribunal (IPT) arguing that the hack was a bulk data, and not a thematic intercept, and is therefore unlawful as it was against people residing in the UK.
The IPT is an independent court the decides complaints under the Regulation of Investigatory Powers Act 2000 (RIPA) and claims under the Human Rights Act 1998 (HRA).
It considers allegations of unlawful intrusion by public bodies, including the Security and Intelligence Agencies, the police and local authorities.
If the IPT declares the warrant was for bulk data and unlawful, it cannot be challenged in a crown court and could halt the proceedings.
However, the NCA could appeal the IPT decision at the Court of Appeal.
The NCA has said it will not comment on any of these issues due to legal proceedings while the court cases continue.