ENCROCHAT HACK: Further delays to hearings as CPS struggles with amount of disclosure requests
A PRELIMINARY hearing into several Encrochat prosecutions was yesterday delayed after the prosecution was hit with several requests for disclosure of unused evidence.
The hearing, which cannot be identified, but involves about 15 defendants, charged under a number of separate operations has already been delayed a number of times.
However, defence lawyers want to ensure that all unused material is served before the case continues.
Unused material is evidence gained by the prosecution that they do not rely on during the trial.
But, it all has to be served on the defence, even if it includes material that weakens the prosecution case and aids to defence to decrease the risk of miscarriage of justice.
The CPS and police forces have been working on a disclosure improvement plan after a series of rape cases collapsed after text messages between the defendant and the alleged victim, that cast doubt on the rapes taking place, were not disclosed until late in proceedings.
Yesterday, the court heard that there have been several "section 8" disclosure requests from defence lawyers, and the prosecution is working through them, but could not commit to a date when the task will be completed.
It was not exactly specified in court what evidence is being sought, but prosecutor Jonathan Kinnear QC, who is dealing with all the Operation Venetic (Encrochat) cases, said the prosecution had received several documents from defence lawyers in the past week which they said meant other material should be disclosed.
He said: "The material is from open source websites. As a result of this information, the Crown's team has continued to consider disclosure requests and all of the documentation sent over the last week."
He said an email had been sent to defence lawyers explaining the issue.
He said: "The email states we have been working on responses to defence disclosure requests.
"Given the complexity of the issues and the number of documents received, we have not yet completed this review.
"These are important issues that have an impact not just on this case, but on other cases also.
"The Crown does not consider that it will be in a position to meet the disclosure requests at present.
"Given the number of documents provided last week and the number of issues in them, despite our best efforts, we don't think we can meet the disclosure requirements
A defence lawyer handling the hearing said: "We welcome the review of the material, and it's not for us to pre-judge how that is to be conducted.
"We do, however, observe that the disclosure officers don't seem to understand the significance of a lot of the technical material in the unused.
"It would be far more likely that disclosure obligations are met if there is an expert deployed to look at unused material."
He also said the repeated delays had led to concerns for defendants, many of who remain remanded in custody, and he will be looking to make bail applications.
He added: "Can I make one observation? With some of the material the defence are not in a position to verify if it is genuine but the Crown is."
The judge said: "That is a satellite issue to the one we are focused on at the moment. We need to bring this issue of disclosure to completion.
"We also need to reflect on what is the status of documentation as we know it was not produced by an expert." It is understood up to 450 defendants may have now lodged some form of challenge over Encrochat evidence, leading to may delays at a time when the court service already has considerable backlogs due to the coronavirus pandemic.
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 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.
Encrochat shut itself down when it discovered the hack in June.
The National Crime Agency (NCA) is leading the whole investigation called Operation Venetic which is said last week has led to more than 1,500 arrests.
The total number of charges is not know. Some issues under consideration include how the hack was done and if it were lawful and whether real time messages were "live intercepts" which are not admissible in British courts. Defence lawyers also want access to all raw date from the devices rather than extracts selected by the prosecution.
The case was adjourned until next month.