ENCROCHAT HACK: 'Live interception' issue 'back on table' after defence lawyer claims of 'ace card'
LAWYERS for hundreds of people charged under the country's biggest ever operation into suspected organised crime believe the issue of "live interception" could be back before the courts after defence experts discovered an alleged ace card.
More than 1,500 people have been arrested under Operation Venetic, the National Crime Agency (NCA) investigation into the use of the encrypted phone system Encrochat by suspected drug and firearms traffickers and money launderers.
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.
Police and other agencies are allowed in this country to tap into phone calls as they happen, known as a live intercept, but it can only be used for intelligence purposes and not as prosecution evidence in court.
However, hundreds of people charged under Operation Venetic have had real time messages disclosed by the prosecution as evidence against them, leading to several legal challenges.
In some cases defendants have been charged based on real time messages alone with no drugs, firearms, cash or other evidence found including devices.
Defence lawyers argued that the real time messages were "live interceptions'', which are inadmissible as evidence in British courts, and sought a court ruling that the real-time messages could not be used as evidence during criminal trials.
However, Last month month the Court of Appeal prevented a test case called Sub Zero, about the admissibility of the real-time messages, from being sent upwards to the Supreme Court.
Court of Appeal judges said that because the messages were briefly stored on the sending device before being sent, and then briefly stored on the receiving device, before being read, it was not a live interference.
The judges ruled that it was the same as hacking into the historic stored messages or even emails, which is called targeted interference and can access material that can be used in court.
If left the challenge dead in the water, although several other defence, evidential and disclosure issues are being explored at crown court preparatory hearings concerning up to 450 defendants.
Now a source close to the defence has told Essex News and Investigations that experts for the defence have made a discovery that could see the live intercept debate back before a court.
The source said: "Now the forensics of the phones have been tested on the defence side. It could be a game changer."
The source said the defence believes the analysis shows some evidence disclosed by the prosecution could only have been obtained by live interception as it cannot be stored.
Last week we revealed how one preparatory hearing had to be delayed due to numerous disclosure requests from the defence that the prosecution said it was struggling to deal with in a timely fashion.
So, it is not clear when and if this new argument will be raised.
Arrests have continued to be made in the Encrochat investigation.
HAUL: Drugs found during Met Police Operation Eternal raids on Thursday (Met Police)
About two kilograms of cocaine, cannabis and more than £50,000 in cash (top image) was seized following warrants in Southwark and Bedford on Thursday as part of Operation Eternal, the Met Police Specialist Crime Command arm of the operation.
One man, aged 34, was arrested at an address in Cranborne Close and a 54-year-old woman was arrested at West Way, Moggerhanger, both in Bedford. They were both arrested for conspiracy to supply cocaine. No one was arrested at the address on Milcote Street, Southwark. Officers found a quantity of pills at that address. Those arrested were taken into custody suites in Bedford. Detective Sergeant John Cowell, from the Specialist Crime Command, said: “The arrests made this morning will have a positive impact on dismantling this organised crime group (OCG) we are confident are involved in the supply of Class A drugs. “The supply of Class A drugs is the fuel for violent crime that officers from the Met are committed to tackling. It remains our top priority.”
LIVE INTERCEPT: Essex News & Investigations highlighted words in red from the alleged NCA document
It comes as a leaked apparent NCA document appears to show the agency itself referring to real-time messages as live intercepts, that can only be used for intelligence purposes. The handwritten note, one of several alleged prosecution disclosures that appear to have been leaked by defendants in the case, appears to report back on an update from the Dutch prosecutor.
It said: "The Joint Investigation Team (JIT) will share live intercepted, unencrypted data with Europol.
"The camera function will not be used, nor will the microphone."
It appears to go on to say other countries were being sent live intercept material for intelligence purposes only.
It added: "Country packages will be produced based on call data and sent via Europol.
"These will be INTEL only."
Encrochat defendants and loved ones say this is proof the real-time messages were live intercepts and the Sub Zero ruling cannot have been correct.
However, it is understood the document was raised during that hearing.
The NCA is refusing to discuss the alleged leaks while the court cases continue.
However, when the sub zero case was in crown court both the judge and prosecution acknowledged that evidence documents appeared to have been leaked and posted on social media.