HUGE NUMBER OF ENCROCHAT CHALLENGES: CPS bid to streamline cases as 53 defendants appear in court
ABOUT 450 defendants charged in the country's biggest ever operation against suspected organised criminals appear to have lodged some form of challenge against their prosecutions, threatening to clog up an already choked court system. One crown court hearing on Monday featured a staggering 53 defendants charged under the National Crime Agency (NCA) Operation Venetic investigation into users of the encrypted Encrochat mobile phone system, and about 40 defence lawyers representing them. They all appeared for a joint preparatory hearing to try to streamline issues that are being raised by the defence lawyers and to group those cases together to try to limit the number of hearings. 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.
Encrochat shut itself down when it discovered the hack in June. Lawyers for a group of defendants charged in the operation launched a legal challenge to the "real time" messages being allowed as evidence in court, saying the were the result of "live intercepts" which are not admissible in British courts.
However, the case, which cannot be identified and has been called "Sub-Zero" was rejected by the Court of Appeal, which blocked a further challenge being taken to the Supreme Court this month. Now more Encrochat challenges and issues with evidence are being raised. There is currently a backlog of about 64,000 crown court cases in the criminal justice system, a figure which has been severely worsened by the coronavirus pandemic, with some trials not being listed until March 2022 and beyond. With at least 1,550 people arrested under Operation Venetic, and hundreds of them charged, the NCA, CPS and court service are facing major headaches due to the number of challenges being made, further delaying cases and taking up court time on top of the pandemic. The 53 defendants in Monday's hearing were charged under 13 separate operations which are part of the umbrella operation Venetic. Prosecutor Jonathan Kinnear QC suggested there were now 450 defendants raising issues with cases. He said: "I have been instructed to oversee the Venetic matters across the country. "While I do not know of all 450 matters individually I have a good overview and have been responsible to date for dealing with substantive arguments."
One defence lawyer said his client's argument was that the NCA had been misleading about its involvement in a second encrypted phone system hack, details of which were revealed by Belgian Police earlier this month, at another preparatory hearing a week earlier, involving 15 defendants (Case B). He also suggested the court at the Sub-Zero first Venetic preparatory hearing, which started last November, may have been misled. A week before Case B got underway, police in Belgium revealed they had also obtained messages from the separate Sky ECC encrypted phones network.
Sky ECC had boasted that its encryption could not be breached in the same way as the Encrochat system. But at a press conference early this month Dutch and Belgian police said investigators had hacked into the Sky ECC system at the end of last year, with half of more than a billion messages decrypted.
Defence lawyers in Case B asked the court to get the NCA to disclose any information it held about the Sky ECC operation.
However, no documents were disclosed, and Mr Kinnear, who is also prosecuting in that case, said prosecution witnesses could not answer questions about Sky ECC, "as it involves sensitive matters."
The defence lawyer in Mondays hearing, referring back to Case B, said: "We call it 'the Belgian argument'.
"During the course of arguments last week in another (hearing) it became clear that the central theme of the prosecution's case so far... is that they could not decrypt material because if they did, we would argue it would be inadmissible.
"It has been apparent on the evidence of (a GCHQ prosecution expert) that in fact in Belgium, on a separate operation, relating to a portal SKY ECC they did do precisely what the prosecution did in EncroChat and that they said they couldn’t do.
"The NCA witnesses were part and parcel to the Belgian operations up until October 2018.
"They must have known the ability to do so was there.
"They must have utilised that."
He said the secondary argument was "an abuse of process," with two named NCA clearly officers "misleading the court in the Sub-Zero arguments.
He added: "In short, a rather contaminated argument in Sub-Zero and a root and branch exercise should be given to the Belgian material."
Mr Kinnear said: "We don’t accept the way in which (the defence) has characterised the matter.
"(The GCHQ witness) has not given any evidence about Belgium at all."
The judge in Monday's hearing said: "There are 53 defendants. The way to manage these prosecutions and defendants successfully is to
manage them strategically and today is to discuss strategy and identifying what the issues in cases are and allocating them into streams with appropriate directions so t hat they can be dealt with efficiently and fairly."
Much of the hearing was spent with the judge taking a register of all 53 defendants and grouping them into the issues involved and how many had already pleaded guilty or were intending to. The court heard that five of the 53 had pleaded guilty and seven would or were likely to. Mr Kinnear argued that cases should be streamlined down into groups to avoid taking up court time. He said: "All defendants are entitled to participate but I urge the defendants and the court to select one or two lead advocates so there is some focus. "I am not sure we can't force the defence but we will invite the court to case manage the hearings to be as streamlined as possible." But, one defence lawyer, who said he would be raising issues of "police dishonesty", said the prosecution had created the workload for itself by charging so many people at once, so it should not be cutting corners. He said: "I have a client who is charged with very serious offences. The consequences are high. "We may have particular arguments to make – we would consider it grossly unfair if for case management or other reasons he is to be debarred from representation if that affects any future trial. "This is a case that is brought by the crown. "They have chosen to indict this number of people. "These are the consequences. The defendants should not suffer." Another defence lawyer raised issues with the disclosure of unused prosecution material not being consistent across cases. He said: "In relation to unused material in Operation Venetic, it is not being disclosed consistently across cases. "I find myself in situations in Venetic where I can’t tell one defendant even though the unused material is not specific to that defendant and is general." The judge added: "I am not denying arguments it’s the order of arguments and in what forum." Mr Kinnear added: "If the overarching issues are to be argued it is not necessary for all cases to have preparatory hearings. I am not actively to remove this for all cases but preparatory hearings should be exception rather than the rule. "The Court of Appeal will not be thankful if they are inundated with eight or ten cases dealing with the same point." Monday's cases were adjourned and Case B resumes on Monday.