A senior lawyer told the Crown Prosecution Service (CPS) that there was a “substantial risk” that police warrants to obtain messages from the encrypted mobile phone network, EncroChat, would be found “unlawful”.
Lord David Anderson QC advised prosecutors in May 2020 that the CPS could face “formidable arguments” over the lawfulness of warrants obtained by the UK’s National Crime Agency (NCA) to harvest messages from EncroChat phones.
The advice was not disclosed to lawyers representing defendants charged with crimes based on evidence from EncroChat messages during a major preparatory case last year, it has emerged.
Anderson revised his advice just under three weeks later, following a briefing from the NCA to give a more favorable view of the lawfulness of the operation.
British police have made some 1,550 arrests after obtaining millions of hacked messages from EncroChat encrypted phones.
According to the National Crime Agency, which led the investigation in the UK – codenamed Operation Venetic – EncroChat phones were used almost entirely by organized criminal groups.
Around 250 prosecutions are pending in the UK, involving multiple defendants accused of money laundering, supplying drugs, violent crime, or firearms offenses.