#Encrochat Challenging 2025 Evidence as Unlawful Interception

The EncroChat operation, executed by French and Dutch authorities in April 2020, compromised over 120 million encrypted messages and triggered thousands of arrests across Europe. However, defence teams have consistently argued that the evidence against their clients was obtained through illegal hacking techniques, lacking transparency and undermining the fairness of criminal proceedings.

Challenging Evidence as Unlawful Interception

R v A, B, C and D (ABCD) (2021): In the UK, defence counsel contested that the French‑deployed Trojan implant constituted “interception” under section 4 of the Investigatory Powers Act 2016 (IPA 2016). Since section 56 of the same Act bars interception evidence from criminal trials, they argued for total exclusion of EncroChat data.
PACE 1978, s.78 Exclusion: Simultaneously, defence invoked section 78 of the Police and Criminal Evidence Act 1978, requesting trial judges to exclude any evidence whose prejudicial impact outweighed its probative value.

Asserting Breaches of Fair Trial Rights under the ECHR

Defence teams can bring applications to the European Court of Human Rights (ECtHR), arguing that the EncroChat hack and subsequent data transfers violated:

Article 6 ECHR (Fair Trial): Lack of procedural safeguards and secrecy prevented meaningful challenge to evidence collection. In A.L. and E.J. v. France, applicants argued no effective remedy existed to contest decisions authorising data retrieval.
Article 13 ECHR (Effective Remedy): With no access to underlying logs or technical reports, accused persons were denied an effective domestic remedy to challenge the lawfulness of evidence gathering.

Invoking Privacy Rights under Article 8 ECHR

Lawyers can assert clients’ right to private and family life under Article 8 ECHR, demanding rigorous proportionality assessments:

Disproportionate Interference: Evidence obtained through breaches of national and EU procedural rules—resulting in serious intrusion into private communications—should be excluded as disproportionate.
Transparency & Investigation: Fair Trials highlights that misattributed messages, missing metadata, and lack of contextual information “seriously undermines” the ability to prepare a defence.

Scrutinizing Chain of Custody and Data Integrity- #Encrochat Challenging 2025 Evidence as Unlawful Interception

Defence counsel should demand full disclosure of:

Forensic Logs & Checksums: To verify that EncroChat data was not tampered with after extraction.
Metadata & Contextual Information: To identify errors in attribution or gaps in conversations that could alter the meaning of messages.

Independent digital forensic experts can then assess whether the prosecution’s data handling protocols satisfy evidential standards — an avenue repeatedly emphasized by Fair Trials.

Leveraging EU Law: CJEU Rulings and the EU Charter

National courts can be asked to refer questions to the Court of Justice of the European Union (CJEU) under Article 267 TFEU:

Case C‑670/22 (M.N.): On 30 April 2024, the ECJ ruled on the legality of retrieving German EncroChat user data held by Europol, interpreting EU information‑sharing rules and fundamental rights safeguards.

Defence teams can rely on the Charter of Fundamental Rights of the EU to argue that any cross‑border data exchange lacking proper judicial authorisation breaches EU law and must be excluded.

Pursuing Post‑Conviction Remedies

In the UK, dozens of individuals convicted largely on EncroChat evidence are poised to apply to the Criminal Cases Review Commission (CCRC) for case reviews and potential quashing of convictions. Defence can argue that convictions based “solely on the basis of EncroChat evidence” are unsafe if the underlying data is deemed inadmissible.

Collaborating with Civil Society and Strategic Litigation

Amicus Briefs & Open Letters: Partnering with NGOs such as Fair Trials to file amicus curiae submissions and public appeals.
Judicial Reviews: Challenging the secrecy surrounding the hack by seeking court orders for disclosure of internal documents and oversight reports.

These strategic actions help shine a spotlight on systemic issues in digital investigations, bolstering individual defences and promoting broader legal reform.