French court refuses to expedite trial of Sky ECC cryptophone distributor Thomas Herdman

‘No clear evidence of links to criminal activity’

At a hearing in the Paris Court of Appeal on 12 December, Herdman’s lawyers, Philippe Ohayon and Paul Sin-Chan, argued that there was no clear evidence to suggest Herdman had any direct links to criminal activity.

The court heard that Herdman was the business development director for a small distributor, LevUp, which supplied Sky ECC phones to a network of resellers. The company claimed to be the smallest of four major distributors that operated for Sky Global, accounting for only 4% of Sky Global’s market share.

Thomas Herdman

Herdman had cooperated with US law enforcement since 2021 and agreed to move to Madrid at the request of the US Drugs Enforcement Agency, before being unexpectedly arrested by the French police.

A three-year investigation by the French courts found Herdman had only 113 clients, none of whom were based in France and only one had been potentially involved in criminal activities, Herdman’s lawyers told the court.

Herdman has already spent more than three years in pre-trial detention, which lawyers argued is “disproportionate” under the French justice system. The delay proposed by judges to hear Herdman’s case as part of a wider hearing into Sky ECC in a “special criminal court” means the businessman will have been held for at least five years before the case is heard.

That is “unacceptable” under the European Court of Human Rights, which requires people to be judged in a reasonable time after arrest, and under French criminal procedure, the court heard.

Herdman held in poor conditions

Herdman told the court he was being held in poor conditions at the Fleury-Mérogis prison, south of Paris, making it difficult to prepare for his case. He said his cell is cold, without heating, so the walls are wet and covered in black mould. He said there is no hot water in the cell or in the common bathroom.

The Canadian said he has been forbidden to work for a year, has not been able to take part in social activities, and has had no physical contact with anyone.

Under French law, criminal cases can be judged by a correctional court to accelerate judicial procedures and hear cases in a reasonable time.

Herdman’s lawyer argued that because of his client’s “extremely limited” role in the Sky Global operation, and his long pre-trial detention, it was reasonable to hear Herdman’s case in France’s lower correctional court, which can impose a maximum sentence of 10 years.

The judges refused the application.

Herdman cooperated with US law enforcement 

Lawyers told the court that Herdman had cooperated with US law enforcement agencies during their investigation into Sky ECC.

US undercover agents secretly recorded phone conversations with Herdman and arranged a meeting, which led to them buying three Sky ECC phones, according to documents filed in the French court.

But his lawyers argued there was no clear evidence to show that Herdman was aware of criminal activities involving Sky phones. In one disputed secret recording of a phone conversation between Herdman and an undercover agent, the agent used the word “popped”.

Law enforcement officials have interpreted the word as a slang term to suggest that a user of Sky ECC had been arrested. Herdman said in evidence that he did not understand what the undercover officer, who had a heavy Eastern European accent, was talking about and had ignored the comment.

Herdman asks for bail to prepare case

The lawyers asked the court to release Herdman on bail with an electronic tag to allow him to prepare for his case.

Herdman’s father was a police chief in Vancouver in an anti-drugs squad and Herdman would not want to be involved in criminal activity especially drugs trafficking, the court heard.

The lawyers said Herdman’s daughter had paid for an apartment in Paris where he could be held under judicial control. His friends and family have offered to pay bail of €250,000 taken from a Canadian police pension fund.

Herdman’s lawyers told the court that given his age, he did not have many years left, and would like to spend some time with his young daughter and prepare for his trial in acceptable conditions. He would accept an electronic tracking bracelet.

The court heard that the Supreme Court of British Columbia in Canada had twice refused requests from French investigative magistrates to open a criminal investigation against Sky and Herdman in Canada.

The Canadian court found there was not sufficient evidence to show criminality either by Sky Global or Herdman. 

Prosecutor: Herdman at risk of leaving France

The Canadian court had also turned down a French request to seize Herdman’s Canadian bank account because evidence provided by the French did not demonstrate that Herdman’s funds, including bitcoins, were derived from criminal activities.

A prosecutor objected to the application, telling the court she was convinced of Herdman’s guilt when she read of his use of bitcoin in the criminal files.

She said that as Herdman is Canadian and has no attachment to France, he was at risk of flight before the trial.

The investigation showed that Herdman had between 65 and 100 bitcoins, worth up to £84,000 as of December 2024, which would be enough to organise an escape from France.

Other people indicted in the Sky case, who include rich or allegedly criminal individuals, may also have the means to prevent Herdman showing up for the special criminal trial.

She told the court that Europol had recently made arrests on other cases of encrypted phones, showing that it was a highly profitable market for criminals. She argued that if Herdman was released he could go back into the encrypted phone market.

Herdman’s lawyers told the court he had no technical skills to start an encrypted mobile phone business, and was in any case too tired after almost four years in pre-trial detention. And with Sky Global having been shut down, it would not be possible to return to the company.

He has had no contact with any of the other people indicted in the Sky case since 2021 and it is not in his interest to resume relations with them, said Herdman’s lawyers.

Matter of honour

Herdman said it was a matter of honour for him to appear in court to fight what he described as a fictional case against him.

He said the three-year judicial investigation since his arrest had shown that he had not spoken to criminals and did not participate in a criminal organisation.

He said that of the 30 people indicted, he was the only person to have been arrested and held in prison.

The judge told Herdman: “Your demand for release is acceptable for consideration, but rejected.”

Speaking after the hearing, Herdman’s lawyer, Sin-Chan, said the manner of the court’s referral of the case to the criminal court and its confirmation of his detention “demonstrated the denial in which the French justice system has locked itself in order to justify the largest interception of personal data in history”.

“Vicarious liability and presumption of culpability are the opposite of the fundamental principles of law,” he added.