EncroChat evidence and fair trial rights under scrutiny
Recent ECtHR proceedings raise significant questions around encrypted communications evidence, cross-border investigations and the right to a fair trial.
Dr Felicity Gerry KC is instructed to advise on an EncroChat-related matter, as the European Court of Human Rights (ECtHR) begins to grapple with the legality of evidence derived from decrypted cryptophone networks and fair trial issues.
The ECtHR has recently communicated two significant cases concerning the use of evidence obtained from encrypted communications platforms: Silgir (No 2) v Germany, concerning EncroChat, and Raal & Reudolph v Estonia, concerning ANOM, the system at the centre of the FBI’s Operation Trojan Shield, also an issue in Australia where Felicity is also admitted. In both scenarios, the encrypted communications of an entire user base were decrypted and collected by one state, with only portions of that data shared with other states to found criminal prosecutions, producing convictions worldwide for alleged serious criminality.
Fair Trials and the European Criminal Bar Association (ECBA) have intervened as third parties in these ECtHR proceedings, raising core rule-of-law and fair trial concerns, including the opacity around how the underlying data capture was authorised and carried out, the use at trial of curated evidential products obtained through mutual legal assistance without the raw data being made available, and the risks of excessive reliance on “mutual trust” between states in cross-border criminal proceedings.
These developments are of direct relevance to the growing body of EncroChat decisions in England and Wales, where questions of admissibility, disclosure, fairness and the integrity of cross-border evidence-gathering remain of serious concern.
You can read more about Fair Trials’ intervention in Silgir v Germany (No 2) and the Fair Trials and ECBA intervention concerning ANOM evidence.
