Our drug laws are a threat to YOUR human rights

Dr. Rebecca Tidy uncovers a terrifying drugs sting operation that sets a dangerous precedent for your right to a fair trial

by Dr. Rebecca Tidy

Mehmet Yildirim was at home when he heard a loud thudding noise at the door.

The 36-year-old father-of-two opened it to find six Metropolitan Police officers with battering equipment. One of the cops immediately arrested and handcuffed him, while the remaining officers searched his house. Later that day, he was charged with conspiracy to supply class A drugs based on messages police allege were sent via an EncroChat encrypted phone.

There have been over 4,000 arrests across Britain since French authorities covertly accessed the encrypted phone network, EncroChat, in summer 2020. They obtained around 100 million messages, many of which were about drug trafficking. Cops went on to raid hundreds of houses, often bringing along a photographer to turn this traumatic event into a highly-visible PR stunt. 

With thousands of kilos of drugs seized, UK law enforcement finally managed to reverse the downward trend in drug seizures that had characterised the previous decade. It was touted as a huge win in the fight against organised crime and drug trafficking. Yet this “success” comes at a significant cost to the human right to a fair trial whether you’re a major criminal or a law-abiding citizen, lawyers observe.

Defendants in Encrochat cases and their legal teams are unable to access crucial digital evidence in the case against them. Unbelievably, Mehmet’s seen no physical evidence whatsoever of his alleged criminal activity, despite spending eight months’ on remand. His disclosure bundle contains only a printout of the alleged messages.

Hakan Yildirim, Mehmet’s brother, says:

“The police didn’t find any drugs or Encrochat devices in his or his co-defendants’ possession. There was no cash, no surveillance. Nothing. It’s literally this printout and some cell site [phone location] data from a couple of years ago: this means there’s literally no way of testing – or double-checking – the accuracy of the evidence against him, which is unheard of in a modern British court.”

Mehmet denies ever possessing an EncroChat device. In fact, he sustained a serious brain injury in 2015 and psychologists have deemed him unfit to enter a plea at his trial. Hakan says, “Despite his limited mental capacity, the Metropolitan Police attributed five EncroChat handles [accounts] to him. One of them sent a photo of a jar of honey in summer 2020 and officers found an identical brand of honey inside his house in April 2022.”

“But that doesn’t prove he sent the messages,” he says, “there were five Turkish labourers living and working at the premises during that time period. The police didn’t bother investigating them, not even the guy who returned to his home country soon after news of the hack emerged.”

Mehmet’s case isn’t a one-off: there are hundreds of Encrochat defendants across Britain who deny ever possessing a device. The criminal case against them is based entirely on messages and cell site data with no other evidence of illegality. Hakan says, “There’s no way to test the reliability of these alleged messages. We’re told we have to take it all at face value. How do we know an overworked officer – on a laptop somewhere – hasn’t made a typo or mistake? In fact, how do we know they’re even messages in the first place?”

“To me, a few sheets of paper – and a promise that it’s a list of messages – isn’t evidence. There needs to be more to corroborate this allegation,” he argues.

It’s well-established that individuals and software often have a major influence on the reliability of data generated. Thus, barristers have repeatedly asked the National Crime Agency (NCA) for evidence on how authorities obtained and processed Encrochat data. An independent digital forensics expert can test the reliability of the evidence and the method of acquisition to ensure defendants receive a fair trial, lawyers say. 

They also argue that law enforcement agencies wishing to conceal their method – and thus use data that can’t be tested by defendants – should use their findings only as intelligence, so they can find testable evidence. For example, authorities rarely reveal the identity of undercover cops, instead electing to carry out well-timed raids.

Yet the NCA steadfastly refuses to disclose the digital investigation method, claiming it’s a “defence secret”. Officers do, however, admit that the data was passed between at least three foreign law enforcement organisations, before being decrypted in Britain.

photo of an unplugged smartphone

It’s inescapable that the NCA’s descriptions of the operation – and justifications for its secrecy 

– are replete with errors and inconsistencies. The agency originally claimed that only 4% of Encrochat messages contained no evidence of criminality, but a third-party analysis – mentioned in a December 2022 court hearing – revealed that the correct figure was well over 60%.

For over two years, top NCA officer Emma Sweeting forgot to disclose key notes that aided Encrochat defendants. She eventually revealed them to the court in January 2023. Meanwhile, her colleague Luke Sweeting told the court he’d accidentally wiped his phone and thrown it in the bin, then claimed he’d received no training on the requirement to retain evidence for the court: again rendering defendants unable to access key information.

The NCA’s secrecy around how the Encrochat data was obtained and processed contradicts the National Police Chiefs’ Council’s own guidelines for presenting digital data as evidence in criminal proceedings. Officers must record every step taken to obtain digital evidence and an independent expert should be able to examine those processes to reach an identical conclusion, the guidelines say.

Dr Ed Johnston is an associate professor of criminal justice and procedure at the University of Northampton. He highlights that the NCA’s conduct in Operation Venetic fits with a wider pattern of behaviour in criminal justice, saying, “Since its inception, the agency has consistently resisted scrutiny including its common law and statutory duties to disclosure. It takes an approach that suggests that safe trial safeguards – afforded to all suspects in England and Wales – are not afforded to individuals unfortunate enough to be investigated by them.”

Legal experts state that the NCA’s secrecy is an abuse of defendants’ human right to a fair trial. Laure Baudrihaye-Gérard is a director of Fair Trials: a group of lawyers, academics and experts who campaign for fairness, equality and justice in criminal proceedings across the globe. She says, “How can you prepare a defence if you can’t access the evidence against you? How can you challenge evidence that’s inaccurate or illegal if you don’t know how it was obtained? It simply isn’t possible.”

Many unconvicted Encrochat defendants have spent over 32 months in prison, due to trial delays stemming from the ongoing legal arguments, Covid lockdowns and barristers’ strikes. Dr Johnson explains, “Remand times are a massive threat to fair trial rights and the presumption of innocence. If you were on remand, locked up 23 hours a day, kept away from your family – what’s stopping you entering a guilty plea and thinking you’ll get home sooner?”

The implications of a guilty plea are stark – you could lose your home and job – but if you’re caught up in the desolation of prison, why wouldn’t you think ‘I need to get out of here ASAP’?

“We constantly hear about how the justice system needs to be reframed to provide justice to innocent complainants,” he explains, “but we should also be thinking about the innocent defendant, locked up in prison, contemplating entering a guilty plea to end the hellish existence of living in the prison system. This false guilty plea will have huge consequences on the rest of their life”. 

To compound this poor state of affairs, lawyers for 10 defendants say the NCA knew the Encrochat hack was a live intercept and should’ve requested a equipment interference warrant, but knew this wouldn’t allow the messages to be used as evidence in British courts. The lawyers argue that the NCA failed in its duty of candour – deliberately withholding key facts – to obtain their desired targeted equipment interference warrant.

But the NCA firmly denies that its officers intended to conceal key facts from the court, insisting that they did so in – yet another – error. It hired top criminal barrister, Jonathan Kinnear, KC, who regularly charges over £750 an hour, to argue its case in the IPT hearings that’ve spanned the last few months.

The NCA has previously faced extensive criticism for failing to fulfill its duty of candour – and provide the court with all relevant information – when applying for warrants. In 2015, an IPT ruled that it used an unlawful warrant to install eight covert listening devices in five locations. A judge commented that the NCA held a readiness to conceal information from independent decision-makers, even saying she found its ignorance of basic investigation procedures “difficult to believe”.

Further investigation revealed that 79% of NCA investigations had defective warrants in 2016. The agency “may be performing coercive acts which are a serious infringement of an individual’s liberty without lawful basis, causing significant stress and expense to innocent people”, the Law Commission concluded. 

But this damning statement comes as no surprise to the hundreds of families – including the Yildirims – who have gambled their entire life savings in their fight for a fair trial with testable evidence. The NCA is repeatedly riding roughshod over the human rights of every single person in Britain to satisfy its appetite for high profile drug convictions, these families argue. 

For defendants, it’s undeniable that the NCA’s actions – and financial resources – are serving to weaken the effectiveness of safeguards in the criminal justice system from warrant applications to the right to full disclosure of digital evidence in a testable format. It raises the worrying question of whether any of us could truly expect a fair trial if wrongly accused of a crime in Britain.

It’s ironic that the import-level price of cocaine in Britain fell to a record low of £22,500 per kilo in December 2022, which is much lower than the £34,000 of February 2020, prior to the Encrochat busts and lockdown. This small fact alone serves as a reminder that the NCA’s efforts in Operation Venetic – including its disregard for the human right to a fair trial – have failed to reduce drug supply across the country.

Rebecca Tidy is a freelance journalist specialising in criminal justice and drugs. Prior to this, she spent a decade researching policing and drug policy at Plymouth University and the University of Exeter. Tweets @DrRebeccaTidy

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