In 2017, the French Gendarmerie began an investigation into EncroChat. The rationale for the investigation was based on evidence obtained in the course of other investigations which pointed towards criminals using the network extensively to communicate amongst themselves.
During the investigation, EncroChat’s layer of end-to-end encryption was bypassed and the content of EncroChat users’correspondence became available for law enforcement to peruse at their leisure.
It is important to acknowledge that the presumption of innocence in EU Law has several bases. The presumption is explicitly provided for in the EU Charter of Fundamental Rights (CFR) in Article 48 and Article 6(2) ECHR.
In terms of EncroChat, the European Convention on Human Rights (ECHR) is arguably the most important source of law as its scope extends to members of the Council of Europe (which includes the United Kingdom) and is therefore wider in scope than EU Law bases alone. This is significant, considering many cases involving information obtained from the EncroChat investigation as evidence have been taken in UK jurisdiction.
In addition, the applicability of the CFR is narrower than that of the ECHR, as the CFR’s scope is limited to the actions of EU institutions and bodies in addition to national authorities when they are implementing EU law.
The EncroChat investigation has uprooted many preconceived ideas of the capability of law enforcement. The concerns surrounding the presumption of innocence and therefore, the admissibility of evidence are in my opinion, well founded.
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