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#Encrochat: This case to collapse after prosecution couldn't prove accused used encrypted phone

Hundreds of people across the UK were this year charged with drugs, firearms, money laundering and other organised crime offences as part of the ongoing operation targeting users of the now defunct Encrochat encrypted phone messaging service.

Charges against Miles Headley, 24, were dismissed this month after lawyers successfully argued the Met Police had failed to prove incriminating Encrochat messages about the supply of drugs had been sent by him or he ever held such a device.

In April Dutch and French investigators broke through the encryption of the supposedly secure Encrochat encrypted phone communication platform which was being used by around 60,000 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.

Of the more than 1,000 people arrested as part of the wider operation, many were not found in possession of Encrochat devices, meaning several of the prosecutions, including Headley's, are based on remotely-obtained message evidence alone.

It has since emerged that many of those arrested were already on police radars or under surveillance before the Encrochat operation was launched.

He was arrested by the Met Police on June 24 at the home of his property developer father Reg Headley, 56.

Police swooped on the plush mansion in Sutton, south London, amid suspicion Headley junior was the user of an Encrochat device which sent messages concerning drug supply.

He was out on licence after being released from an earlier prison sentence.

In November 2015 Headley was jailed at Croydon Crown Court for eight years after he was found guilty of firearms offences.

He was arrested at his Dad's home on October 14, 2013, after a 17-year-old boy was left blinded after being shot in Ferrey Mews, Brixton, three days earlier.

Met Police officers found a loaded revolver and sawn-off shotgun at the Headley's home.

He was found guilty of the firearms offences, but not the attempted murder.

After being charged over the Encrochat device in June, Headley was recalled to prison.

Despite the device not being found, the prosecution believed it could prove Headley was the user of the phone called "Nextbuilder" through mobile phone cell site evidence and the password used on the device.

He was charged with one count of conspiracy to supply cocaine and another of conspiracy to supply cannabis between April 1 and June 26 this year.

Croydon Crown Court heard that there was no dispute Nextbuilder was involved in a conspiracy to supply drugs, but the defence argued the prosecution had failed to prove it was Headley.  Prosecuting, William Davis said mobile phone cell sites used by the Encrochat device and Headley's personal mobile phone were close to his home and used "azimuths" that pointed towards it, while the password used to access the device was "Headley."  Defending, Graham Lloyd, argued that prosecution evidence about high value cars found at the property was explained by the fact Headley's father was "extremely wealthy."

He also said there were "many hundreds" of other homes in the area in question where the EncroChat device could have been held, and that it was unlikely a "sophisticated criminal" who was using one for anonymity would use his surname as a password.

He added that Headley's previous conviction was well reported locally and it was more likely another local criminal was Nextbuilder.

He said: "Criminals delight in using other people's names to avoid detection or simply to 'muddy the waters' of police investigations.

"What better way for 'Nextbuilder' of doing this by using the surname of a man who will already have achieved some criminal notoriety in the neighbourhood?  

Judge Peter Gower QC wrote in his judgement: "Could a reasonable jury, properly directed, taking the prosecution's case at its highest, conclude that the defendant and "Nextbuilder" are one and the same person?  "In my judgement the answer to that question is no.  "In short, it appears to me that the evidence against the defendant would not be sufficient for him to be properly convicted on either count.  "I therefore dismiss the charges upon which each is based and dismiss both counts."  

Lawyers for several Encrochat defendants are expected to make similar applications for cases to be dismissed following the outcome.  A judgement is still awaited in a separate Encrochat case where the defence has applied to have evidence from the phones ruled as inadmissible.  

They argued that as some of the messages were obtained in real time as messages were being sent, it constitutes a "live intercept," which is not admissible in British courts.  A Met Police spokesman said: "The Met Police and Crown Prosecution Service are currently reviewing the ruling."



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