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#Encrochat: Encrypted phones cases – quantity of drugs and role – what can be challenged?

 Q – If the prosecution suggest that I dealt significant quantities of drugs using an encrypted device, can I challenge this? If so, how?

A - It’s not uncommon for defendants and the defence to report that the police and prosecution have misinterpreted the EncroChat data and messages, leading to disputes over the quantities and types of drugs involved in a case.

As an independent expert witness, I am trusted to offer expert opinion on the content and context of the communication data, which in many cases has been carried out using coded, guarded, abbreviated and slang terminology.

Inexperienced police officers have inadvertently ‘snowballed’ figures and quantities of drugs in many instances, with tallies far in excess of the total amount which can be clearly identified as being involved within an actual transaction having taken place, rather than a discussion about the potential supply of such commodities.

Understanding the context of communication data is paramount to being able to offer interpretation of such highly important evidence.

It is important to remember that high value drug deals don’t take place over a couple of hours and that many conversations span days and even weeks.

This means that the police have sometimes mistakenly counted the same quantities from one potential transaction more than once, even several times. It is often helpful to have an experienced drugs expert witness to provide the court with an alternative opinion on the accuracy of the initial findings.

 Q – It is suggested that I played a ‘leading role’ in the supply of a controlled drug – is this always what happens in ‘Encro cases’? Can I challenge this? 

A – For a defendant to be categorised as ‘leading role’, specific criteria within the drugs sentencing guidelines will need to be fulfilled. A defendant should only be designated as playing a ‘leading role’ if the evidence relating to their specific involvement is representative of such activity. There are many roles and responsibilities within the illegal drugs industry and not all relate to a ‘leading’ status.

If you do not feel that the evidence points to this level of involvement, then it is certainly worth seeking the involvement of a suitably qualified independent drugs expert witness about challenging this assertion. The instructed expert can objectively assess the evidence available to the court in order to form an opinion on whether a significant or lesser role may be more appropriate.

There have been recent cases whereby the prosecution have misinterpreted whether a defendant has “substantial links to – and influence on – others” within the supply chain. When messages form a significant part of the evidence in a case, it can be difficult for law enforcement to clearly ascertain whether the defendant is higher up the supply chain or simply the person who happens to be in technical control of the drugs at the time and is simply carrying out orders and directions form others above. Instruction of an independent expert to assess this is therefore imperative.

Q - Should I instruct a drugs expert in my case? What would the benefit be?

A - The benefit of instructing a suitably qualified drugs expert will offer peace of mind knowing that your case, and specifically the communication data, will have been assessed by an independent expert who offers impartial advice and comment upon quantity of drugs, role and any other relevant matters within the case. Consequently, the defence team are better placed to assist and advise their client to secure the best possible outcome in their case.

Ultimately the instruction of a drugs expert can impact significant upon a defendant’s sentence. If an independent expert’s report successfully assists in the defence case, by reducing the assessment of quantity of drugs and role from the highest category, the subsequent reduction in the sentence passed by the court will be measured in years of a defendant’s life.



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