As the High Court begins hearing allegations today that the publishers of the Daily Mail hacked into phones used by the Duke of Sussex and other public figures, I thought it would be a good time to look at the most successful phone hacking operation ever carried out by law enforcement organisations in the United Kingdom and across Europe.
Between 2016 and 2020, drug dealers and others involved in organised crime were using what they believed to be a secure messaging service called EncroChat. The system was cracked as a result of work by the Netherlands Forensic Institute. As a result, nearly 40,000 smartphones were infiltrated by the authorities and some 2,200 offenders were convicted in the UK alone.
But although courts in England and Wales found ways of declaring the evidence admissible, prosecutions were far from straightforward because the law does not allow material intercepted in the course of transmission to be used in evidence. Without intercept material, prosecutors have to rely on phone hacking — so-called “equipment interference” — to dig out stored data. But that’s not something the agencies like to talk about.
Among those calling for intercept evidence to be admissible is Professor Peter Sommer, an academic specialising in digital forensics, cyber security and electronic communications. In a recent paper, he drew on his experience as an expert witness in criminal prosecutions to explore some of the problems now facing the courts.
You can hear Sommer outlining his concerns — and explaining how EncroChat was cracked — in this week’s episode of A Lawyer Talks. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can listen a short taster by clicking the ► symbol above.
