5 judges will hear a case in opposition to 30 folks accused of being concerned within the distribution of encrypted cell phones utilized by organised felony teams at a particular felony courtroom anticipated to happen in spring 2026 in Paris.
French enchantment courtroom judges final week rejected a petition by Thomas Herdman, 64, a Canadian businessman accused of distributing encrypted telephones utilized by organised criminals, to listen to his case extra shortly in a decrease courtroom.
Herdman, who has been held in a French jail for 42 months with out trial, is the one individual to have been detained by French police over his involvement within the distribution of cryptophones provided by the now-defunct Canadian know-how firm Sky International, and is anticipated to be the one defendant to look on the listening to.
Belgian and Dutch police broke the encryption of Sky ECC, the world’s largest cryptophone community, and harvested tens of millions of messages between June 2019 and March 2021, leading to mass arrests of suspected drug gangs in France, Belgium and the Netherlands.
French prosecutors have indicted greater than 30 people – together with Sky International’s founder and CEO, Jean-Francois Eap, who continues to reside and run companies in Canada – who owned or labored for 4 firms that distributed Sky ECC telephones and particular person resellers.
Herdman, who labored for Canadian Sky ECC distributor LevUp, was arrested by Spanish police in June 2021 and extradited to France, regardless of agreeing to cooperate with US legislation enforcement officers based mostly in Madrid who had been investigating Sky International as a part of a “proffer settlement”.
The Canadian businessman is charged in France with 22 offences, which he denies, together with laundering the proceeds from the importation of medicine by organised crime on account of distributing Sky ECC encrypted telephones, and the lesser cost of supplying cryptographic gear with out correctly declaring it.
A grand jury within the Southern District of California initially indicted Herdman and Sky International’s Eap in March 2021. The indictment accuses the executives of racketeering and knowingly facilitating the import and distribution of unlawful medicine by way of the sale of encrypted communications gadgets.
‘No clear proof of hyperlinks to felony exercise’
At a listening to within the Paris Court docket of Attraction on 12 December, Herdman’s attorneys, Philippe Ohayon and Paul Sin-Chan, argued that there was no clear proof to counsel Herdman had any direct hyperlinks to felony exercise.
The courtroom heard that Herdman was the enterprise improvement director for a small distributor, LevUp, which provided Sky ECC telephones to a community of resellers. The corporate claimed to be the smallest of 4 main distributors that operated for Sky International, accounting for less than 4% of Sky International’s market share.
Herdman had cooperated with US legislation enforcement since 2021 and agreed to maneuver to Madrid on the request of the US Medication Enforcement Company, earlier than being unexpectedly arrested by the French police.
A 3-year investigation by the French courts discovered Herdman had solely 113 purchasers, none of whom had been based mostly in France and just one had been probably concerned in felony actions, Herdman’s attorneys instructed the courtroom.
Herdman has already spent greater than three years in pre-trial detention, which attorneys argued is “disproportionate” below the French justice system. The delay proposed by judges to listen to Herdman’s case as a part of a wider listening to into Sky ECC in a “particular felony courtroom” means the businessman can have been held for not less than 5 years earlier than the case is heard.
That’s “unacceptable” below the European Court docket of Human Rights, which requires folks to be judged in an affordable time after arrest, and below French felony process, the courtroom heard.
Herdman held in poor circumstances
Herdman instructed the courtroom he was being held in poor circumstances on the Fleury-Mérogis jail, south of Paris, making it troublesome to organize for his case. He mentioned his cell is chilly, with out heating, so the partitions are moist and lined in black mould. He mentioned there is no such thing as a scorching water within the cell or within the frequent toilet.
The Canadian mentioned he has been forbidden to work for a 12 months, has not been in a position to participate in social actions, and has had no bodily contact with anybody.
Underneath French legislation, felony instances might be judged by a correctional courtroom to speed up judicial procedures and listen to instances in an affordable time.
Herdman’s lawyer argued that due to his consumer’s “extraordinarily restricted” position within the Sky International operation, and his lengthy pre-trial detention, it was cheap to listen to Herdman’s case in France’s decrease correctional courtroom, which may impose a most sentence of 10 years.
The judges refused the applying.
Herdman cooperated with US legislation enforcement
Legal professionals instructed the courtroom that Herdman had cooperated with US legislation enforcement businesses throughout their investigation into Sky ECC.
US undercover brokers secretly recorded cellphone conversations with Herdman and organized a gathering, which led to them shopping for three Sky ECC telephones, in keeping with paperwork filed within the French courtroom.
However his attorneys argued there was no clear proof to point out that Herdman was conscious of felony actions involving Sky telephones. In a single disputed secret recording of a cellphone dialog between Herdman and an spy, the agent used the phrase “popped”.
Legislation enforcement officers have interpreted the phrase as a slang time period to counsel {that a} consumer of Sky ECC had been arrested. Herdman mentioned in proof that he didn’t perceive what the undercover officer, who had a heavy Jap European accent, was speaking about and had ignored the remark.
Herdman asks for bail to organize case
The attorneys requested the courtroom to launch Herdman on bail with an digital tag to permit him to organize for his case.
Herdman’s father was a police chief in Vancouver in an anti-drugs squad and Herdman wouldn’t wish to be concerned in felony exercise particularly medicine trafficking, the courtroom heard.
The attorneys mentioned Herdman’s daughter had paid for an residence in Paris the place he may very well be held below judicial management. His family and friends have provided to pay bail of €250,000 taken from a Canadian police pension fund.
Herdman’s attorneys instructed the courtroom that given his age, he didn’t have a few years left, and want to spend a while along with his younger daughter and put together for his trial in acceptable circumstances. He would settle for an digital monitoring bracelet.
The courtroom heard that the Supreme Court docket of British Columbia in Canada had twice refused requests from French investigative magistrates to open a felony investigation in opposition to Sky and Herdman in Canada.
The Canadian courtroom discovered there was not adequate proof to point out criminality both by Sky International or Herdman.
Prosecutor: Herdman susceptible to leaving France
The Canadian courtroom had additionally turned down a French request to grab Herdman’s Canadian checking account as a result of proof supplied by the French didn’t reveal that Herdman’s funds, together with bitcoins, had been derived from felony actions.
A prosecutor objected to the applying, telling the courtroom she was satisfied of Herdman’s guilt when she learn of his use of bitcoin within the felony information.
She mentioned that as Herdman is Canadian and has no attachment to France, he was susceptible to flight earlier than the trial.
The investigation confirmed that Herdman had between 65 and 100 bitcoins, value as much as £84,000 as of December 2024, which might be sufficient to organise an escape from France.
Different folks indicted within the Sky case, who embrace wealthy or allegedly felony people, may have the means to forestall Herdman displaying up for the particular felony trial.
She instructed the courtroom that Europol had not too long ago made arrests on different instances of encrypted telephones, displaying that it was a extremely worthwhile marketplace for criminals. She argued that if Herdman was launched he may return into the encrypted cellphone market.
Herdman’s attorneys instructed the courtroom he had no technical abilities to begin an encrypted cell phone enterprise, and was in any case too drained after nearly 4 years in pre-trial detention. And with Sky International having been shut down, it could not be doable to return to the corporate.
He has had no contact with any of the opposite folks indicted within the Sky case since 2021 and it’s not in his curiosity to renew relations with them, mentioned Herdman’s attorneys.
Matter of honour
Herdman mentioned it was a matter of honour for him to look in courtroom to combat what he described as a fictional case in opposition to him.
He mentioned the three-year judicial investigation since his arrest had proven that he had not spoken to criminals and didn’t take part in a felony organisation.
He mentioned that of the 30 folks indicted, he was the one individual to have been arrested and held in jail.
The choose instructed Herdman: “Your demand for launch is appropriate for consideration, however rejected.”
Talking after the listening to, Herdman’s lawyer, Sin-Chan, mentioned the way of the courtroom’s referral of the case to the felony courtroom and its affirmation of his detention “demonstrated the denial during which the French justice system has locked itself as a way to justify the most important interception of non-public knowledge in historical past”.
“Vicarious legal responsibility and presumption of culpability are the other of the basic rules of legislation,” he added.
