ENCROCHAT BACKLASH: Document leaks as suspects' families claim 'live evidence justice miscarriage'
ALLEGED documents from the country's biggest ever single operation against suspected organised crime groups said to be using the encrypted Encrochat mobile phone system are being leaked online with the National Crime Agency (NCA) seemingly doing nothing to get them removed.
The apparent leaks have been published on Twitter and other social media platforms as part of a backlash against Operation Venetic and other Encrochat investigations by friends, supporters and relatives of hundreds of people charged after being arrested as part of the investigations.
They claim much of the operation is a "grave miscarriage of justice" as it is using in court evidence that is regarded as a "live intercept" which should not be admissible in British courts.
There are also concerns about privacy issues as the NCA and other police forces were given access to messages sent by around 9,000 Encrochat users in the UK and only hundreds of people have been charged with offences as a result.
CONTROVESY: Op Venetic was hailed 2020's biggest success by NCA Director General Lynne Owens (NCA)
One twitter user who is regularly tweeting about the operation under the handle @NCANemesis claims to be a defendant who is remanded in custody awaiting trial.
He began tweeting from the account, which initially disappeared from Twitter a few times, this month and vowed to start publishing "leaked documents" after hitting 1,000 followers.
The tweets have included: "The Encrochat hack was illegal and contents of messages are currently being used to jail people.
"This is the start people, all being done under the cover of Covid taking front pages."
BACKLASH: One of the many tweets published by @NCANemesis (Twitter)
There have been claims that during Operation Venetic raids by the NCA children's toys and games consoles have been seized under the Proceeds of Crime Act (POCA).
In another tweet @NCANemesis said: "When my son asked why you are taking my Playstation to the NCA officer, he replied because your Dad has been bad."
In a tweet apparently to the NCA, he said: "My lawyer was using Encrochat for secure communications with his clients.
"Can you explain to me how this is not an invasion of his privacy?
"Also, an explanation of your statement that all Encrochat users are criminals would be appreciated."
Since news of Operation Venetic broke this summer, the NCA has described the Encrochat platform as being used almost exclusively by organised criminals, but apparently leaked documents from the NCA have said that celebrities and others with legitimate privacy concerns were also using the platform.
In 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.
RAIDS: Operation Venetic lead to hundreds of arrests across the country (NCA)
They allowed police forces across Europe, including in the UK, access to previously sent and new "real time" messaging between suspected organised crime groups. It led to hundreds of raids, arrests and seizures of drugs, cash and firearms across the UK in a series of unconnected operations. Of the more than 1,000 people arrested as part of the wider operation, many were not found in possession of Encrochat devices, meaning several of the prosecutions, are based on remotely-obtained message evidence alone.
It has since emerged that many of those arrested were already on police radars or under surveillance before the Encrochat operation was launched. Other claims from supporters of Encrochat defendants include that relatives who have offered security money to the court in a bid to get their loved ones out on bail have had their own bank accounts frozen under the POCA, so they have been unable to pay it to the court.
There have also been claims that their own homes have been raided and searched by police without any items being seized.
OUT: Rapper C Montana was released on bail from HMP Thameside in December (YouTube)
Others have raised fears that the Encrochat hack has set a precedent for hacking into any encrypted platforms such as Whatsapp or others more commonly used and constitutes a major privacy issue that has been overlooked by the national press which is focussed on the coronavirus pandemic.
Several defence lawyers for defendants involved in Encrochat prosecutions have made applications to have cases dismissed on grounds that any Encrochat real time message evidence should be inadmissible in the cases.
In Britain, live intercepts of phone calls and other forms of communication can be carried out by police under strict conditions.
Phone calls may not be recorded and the information gleaned can only be used for intelligence purposes and not as evidence in court.
There are different rules in different European countries, with some nations allowing live intercept evidence in court.
In the UK any historic or "stored" messages that were retrieved from a hack can be used as evidence in court.
CAGED: Encrochat evidence was used in the prosecution of crime boss Matthew Harrod who was jailed in December (Met Police)
In one British prosecution, which cannot be identified, the defence made an application to have real-time message evidence dismissed as inadmissible.
During the hearing it emerged that the NCA and CPS considered it "live" evidence in the early stages of the Encrochat hack and knew there could be problems with it being used in evidence.
But, lawyers for the prosecution argued that as the messages were "stored" onto the devices as soon as they were being sent in "real time," then the data was stored and it could be used in evidence.
This month, the judge agreed, and threw out the application, but the case has now gone to the Court of Appeal.
Other defendants are awaiting similar hearings.
Many Encrochat prosecutions have seen repeated delays as a result of the appeals.
In some cases defendants who were remanded in custody have subsequently been released on bail often due to custody time limits being exceeded.
Earlier this month we revealed how the British rapper C Montana was among those.
Many of the alleged leaked documents appear to show how at the start of 2020 the NCA and CPS did consider the real time messages to be "live intercepts" and that there would be problems using it as evidence.
In some prosecutions other evidence, such as surveillance of suspects and drugs or firearms seized during raids as a result of Encrochat evidence, has led to convictions after defendants pleaded guilty.
However, many of the prosecutions are being based on Encrochat messages alone.
There have been a number of separate applications by defence lawyers that the prosecution has not been able to prove that the defendant was the person using the Encrochat device in question - many of which have never been found.
COLLAPSE: Charges against Miles Headley were dropped after the CPS could not prove he was using Encrochat (Met Police)
Essex News and Investigations exclusively revealed last month how convicted firearms criminal Miles Headley, 24, had an Encrochat conspiracy to supply class A drugs prosecution brought by the Met Police at Croydon Crown Court dismissed after Judge Peter Gower QC said prosecutors failed to prove he was the user of the device.
Judge Gower, however, said in his judgement that the Encrochat messages would have been admissible as evidence.
Other similar challenges have been made.
The NCA refused to comment on most of the issues raised in this article.
A spokesman said: “We do not comment on matters that are subject to ongoing legal proceedings.”
In respect of questions about the bank accounts of relatives being frozen, he added: "As per the Proceeds of Crime Act account freezing orders can be sought where officers have 'reasonable grounds for suspecting that money held in account… is recoverable (ie. proceeds of crime) or is intended by any person for use in unlawful conduct.'
"These orders are granted by courts who have to be satisfied that there are reasonable grounds, and those affected have a full right to appeal."
In terms of children's toys or consoles being seized, he added: "Similarly under POCA law enforcement has the power to seize items that may have been acquired with the proceeds of criminal activity.
"Again, this would be subject to court proceedings to establish that."