ENCROCHAT: NCA op only targeted drug and firearms traffickers with assets leaked documents suggest
THE National Crime Agency (NCA) operation against users of the Encrochat encrypted mobile phone system only targeted people suspected of involvement in drug and firearm trafficking and money laundering, it has emerged.
NCA documents leaked online from ongoing appeals by defendants charged under the NCA's Operation Venetic have shown that the agency only requested access to the phones of people suspected of involvement in the three crimes.
It suggests that the agency was not planning to investigate the users of Encrochat phones who are suspected of being involved in an array of other crimes, including child pornography and child abuse, fraud, people smuggling, armed robberies and other organised crime types.
Although the NCA has refused to confirm or deny this.
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. 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
SEIZURE: Cash and drugs have been taken by police in Encrochat raids across the country (Met Police)
Encrochat devices, meaning several of the prosecutions, are based on remotely-obtained message evidence alone.
It is thought only a few hundred Encrochat devices were found.
The bulk of the arrests have been for drugs, firearms and money laundering, with some for conspiracy to murder.
Encrochat shut down its system and alerted users in June after it realised its security had been compromised.
To get access to the messages the NCA had to submit an application for a European Investigation Order (EIO) to French counterparts.
LEAK: The EIO application selected just three specific crime types (NCA)
A leaked copy of the EIO request that the NCA had to make for access to the Encrochat historic and ongoing live messaging suggests the agency was mainly interested in intelligence on the crimes of drug trafficking, firearms trafficking and money laundering the proceeds of crime. There were 29 other crime types listed, that it could have requested access to, including terrorism, murder, child sex offences, forgery, people smuggling, trafficking of cars and armed robbery that were left unchecked.
An NCA report about the EIO confirmed the operation wished to target drugs and firearms trafficking and money laundering, but it added that information on any threats to life or national security identified would be shared between countries.
The NCA has earlier confirmed that a number of murder plots or planned acts of serious violence were prevented before they happened in the UK after having access to the Encrochat messages.
It is not clear if by not selecting the other crime types, the NCA was unable to get data on users involved in other crimes or whether it has been able to gather and scrutinise that data.
It is also unclear if it is still able to investigate or arrest suspects using Encrochat suspected of involvement in other crimes.
The agency has refused to answer any questions about the EIO.
BLANK: all other crime types were left out and the NCA will not say if it ruled them out of investigations (NCA)
Sources who have been arrested under Operation Venetic said it was beginning to look like a money making exercise by the agency, as the NCA believes people involved in the three crime types are likely to have the most assets.
One man, who has been arrested on suspicion of drug supply, but not yet charged, told Essex News and Investigations: "This looks like the NCA is allowing paedophiles, fraudsters and other people to go free and it is not interested in stopping them.
"It's clearly about going for people with assets to get criminal proceeds."
Police can seize cash, assets and property from people who are convicted of crimes that provided them with money through the Proceeds of Crime Act.
The source added: "I was told there were about 30 Encrochat devices being used in my area, but they only arrested me and one other because we had registered businesses and properties.
"There are people who the NCA knows about who are dealing, but they haven't been arrested because all their cars and everything are rented."
The NCA has been accused by the wives and girlfriends of several defendants and defendants themselves of heavy-handed raids which left children "terrified," including, in one case allegedly using a chainsaw to get through a front door.
Another source, whose property was raided by NCA officers, said: "They took the kids' clothes and Playstation, but left TVs that were worth much more. My kids had identical jackets but they took one and left the other. They didn’t leave him with a jacket."
"It's like they didn't care how much stress they caused to the children."
Other relatives have reported similar incidents with children's clothes and games consoles being seized.
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.
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. Last month, the judge agreed, and threw out the application.
The case then went to the Court of Appeal, where three judges rejected the application.
Lawyers are now trying to secure a Supreme Court hearing for a final appeal. Other defendants are awaiting similar crown court preparatory hearings where they will apply to have cases dismissed. 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. The NCA refused to discuss the EIO or the leak of documents or confirm if it was trying to do anything about them. A spokesman said: “We do not comment on matters that are subject to ongoing legal proceedings.” In respect of questions items seized, 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."