ENCROCHAT: Claims of secret PII application and questions of GCHQ involvement as court case delayed

EXCLUSIVE: A LAWYER for defendants being prosecuted under Operation Venetic suggested the CPS has been making secret applications to the court to have evidence kept from the defence at a tense hearing yesterday.

The barrister at the preparatory hearing, that cannot be identified for legal reasons, suggested the prosecution has made public interest immunity (PII) applications to the court without notifying the defence.

Prosecutor, Jonathan Kinnear QC, quickly moved to say the defence should be "careful" with any inferences reached about PII issues, as they may or may not be right, as the CPS will always "neither confirm nor deny" such sensitive activities.

PII applications can only be authorised to protect information of national security, about covert police techniques or the names of police informants.

The preparatory hearing was looking at legal issues surrounding the hack of the encrypted Encrochat mobile phone communication system ahead of separate trials of a number of defendants charged mainly with drug supply and importation, firearms and money laundering offences under Operation Venetic - the UK's biggest ever offensive against suspected organised crime groups.

A CPS review of what evidence it discloses was prompted by the submission of a defence application for access to much more specific material.

Essex News and Investigations understands the application suggests there have been disagreements between the CPS and National Crime Agency (NCA) over the type of warrant needed to get access to the Encrochat messages from French counterparts who did the actual hack of the system.

The application further suggests the NCA may not have fully disclosed everything to the C{PS, which is therefore unable to disclose everything upon the defence It also asks for a disclosure of any knowledge and involvement of British intelligence service GCHQ in the Encrochat operation.

The application has also asked the court to intervene in the disclosure process and order the disclosure of all outstanding material.

The defence lawyer said there had been no response from the Crown to requests for information about PII applications.

He said: "It must follow that there have been PII applications without notice to the defence.

"This is a cause for concern combined with the current state of the disclosure exercise."

He also raised concerns about delays to requested evidence being disclosed as it emerged the prosecution is to carry out the review of what can and will be disclosed.

During a criminal trial, the prosecution has a duty to disclose to the defence all the evidence it relies on in court plus the unused material, even if it undermines the prosecution case.

There have been concerns since 2018 that full disclosures have not been made in all cases and police and the CPS are supposed to have developed a disclosure improvement strategy to prevent this happening again.

However, the defence lawyer raised significant ongoing concerns.

He said: "We find it puzzling that within 48 hours there can be a complete turn around from there being nothing to disclose to adjourning for a review of disclosure.

"The only reason can be prosecution does not have sufficient confidence about the answers that were given 48 hours before which speaks volumes about disclosure in this case.

He said the defence was considering making an application for a professional counsel to be appointed to the case due to concerns over "the ability of any crown agency" to deal with encrypted information.

He said the CPS was claiming that the Encrochat messages relied on in evidence were taken while stored on the devices before they were encrypted.

He added: "We fail to understand how the prosecution can make such an assertion."

The defence lawyer suggested the CPS was reliant on hearsay evidence from French law enforcement, who carried out the hack, before carrying out a review to see if it was "a safe assertion to make."

He added: "Because of the number of cases affected by Operation Venetic, it is lamentable this review is taking place at this stage and it can't be put at the door of the defence for raising questions about the ability of Crown agencies to decrypt material."

Mr Kinnear is leading all the Operation Venetic case challenges, of which there are believed to be up to 450 individual defendants.

He said: "(The defence) said it must follow there has been a PII hearing.

"He can reach whatever inference he reaches but the Crown will follow procedures set out in part 15 Criminal Procedure Rules.

"The Crown always takes the neither confirm nor deny position on PII as otherwise would confirm it.

INFERENCE: Jonathan Kinnear QC would neither confirm nor deny any PII applications (Linkedin)

"He can draw whatever inference, but he should be careful in that inference as may or may not be right."

He added that disclosure was a continuing exercise which had to be kept under constant review.

Mr Kinnear said: "The Crown's position is the defence case has developed somewhat since the preparatory case began and is not set out in its skeleton argument which is a bland document that put the Crown to proof on the issue of storage. "The Crown's overriding focus is to ensure that the proper and correct disclosure relates to all the issues raised by the defence had been made and I can't stress that enough. "What we will try to do is to ensure the proper disclosure is made. There is an obligation on me personally to ensure that exercise is completed properly and that is what we intend to do." Last 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. The NCA is leading the whole Operation Venetic investigation which is said to have led to more than 1,500 arrests. The total number of charges is not know. Some issues under consideration in the preparatory hearings, include how the hack was done and if it were lawful and whether real time messages were "live intercepts" which are not admissible in British courts. Defence lawyers also want access to all raw date from the devices rather than extracts selected by the prosecution. The case was adjourned until next month.