Perhaps it is not a coincidence that the date the Encro malware was launched was 1st April 2020. With hindsight surely it was foolish to think that any modern communication system was safe. The malware grabbed what was on the Encro phone, limited to about 7 days, and all that was to come. This was done by using the Encro server to implant malware in all the EncroChat devices. The French authorities did this from the servers in Roubaix, the city famous for the Paris to Roubaix bike race. The Court of Appeal has confirmed the legal position on the admissibility of the material. In a nutshell the capture of material was by way of seizing the data stored on the Encro phone and not the transmission of that data. The fact it was the same as the transmitted data did not change the position.
The Mr Justice Dove finding of fact, that supports the Lord Chief Justice Court of Appeal Judgement, is set in stone. Just like the Roubaix finish there is only rough terrain ahead for a defendant linked to an Encro phone. But all is not lost. The conclusions to be drawn from the content of the Encro can be challenged and a careful review of the data may undermine an over confident prosecution. There are plenty of solicitors who will still think there is a chance of excluding the evidence but the better bet is to challenge the conclusions or negotiate a basis of plea and take all the credit available. O’Keeffe Solicitors are able to assist in pursuing the best approach. James O’Keeffe