Europol Digital Forensics Gap Analysis (2026): What It Reveals About Digital Evidence and Why Defence Rights Must Keep Pace
On 16 October 2026, Europol published Digital forensics: gap analysis, a report coordinated by the European Commission that assesses the digital forensic capabilities of law enforcement authorities across the EU Member States. Its central finding is that investigative tools, resources and expertise are falling behind the volume and variety of digital evidence.
For the defence, the report matters for a second reason. Written from the investigators' side, it records weaknesses in tool validation, reproducibility and chain-of-custody documentation that defence teams in EncroChat, SkyECC and ANOM proceedings have raised for years. The defence itself does not appear in it.
What Europol's Digital Forensics Gap Analysis Covers
The report follows up on the Commission's Roadmap for lawful and effective access to data for law enforcement of 24 June 2025, in which the Commission and Europol committed to a gap and needs analysis for digital forensics. The same roadmap invites Europol to develop into a centre of excellence for operational expertise in this field.
Europol based its findings on consultations and surveys with stakeholders and with experts of its European Cybercrime Centre (EC3), and added documents from earlier EU projects and scientific literature. The report does not state how many authorities or Member States took part.
It examines ten areas:
digital forensic tools,
cooperation between expert communities,
standardisation,
cooperation with device manufacturers,
shared platforms and tools as a service,
virtual currencies,
vehicle forensics,
the Internet of Things (IoT),
artificial intelligence (AI) in forensics,
training.
What the Report Admits About the Reliability of Digital Evidence
Read from a defence perspective, several findings go directly to the question whether digital evidence can be trusted in court:
tool validation practices across the EU are highly fragmented, with each country applying its own testing criteria and methods,
for proprietary commercial tools, validation is not uniformly standardised and results may not be easily reproduced,
tools that law enforcement agencies develop in-house may lack documentation and maintenance and are often limited to a single country,
chain-of-custody processes remain largely manual, with a risk of errors and missing documentation,
standards such as ISO/IEC 27037 and ISO/IEC 27042 remain incomplete on chain-of-custody documentation and evidence acquisition, given the pace of change in cloud computing, IoT and cross-border investigations,
the absence of standardised cloud acquisition frameworks can undermine the reliability and admissibility of evidence,
in virtual currency investigations, overreliance on a few commercial tools, whose results were not always interpreted correctly, has led courts to dismiss cases for lack of reliable evidence; the report counts two such cases in France in recent months.
This assessment comes from the law enforcement community itself, the side that generates the evidence and presents it in court.
What Europol Says About AI and the "Black Box" Problem
Europol's chapter on artificial intelligence states that AI "cannot be used in black box fashion". Every action an AI system performs is to be logged, analyses must remain repeatable and, where necessary, be verified manually, and an analysed file must remain unaltered. AI-driven processes are to be traceable and documented so that results can be reproduced in court, and the report warns that anti-forensic techniques can mislead AI systems.
The defence has applied the same standard to encrypted-communications evidence for years. In EncroChat proceedings, the design and operation of the French interception device are covered by national defence secrecy, as the French Gendarmerie itself states (see also our post EncroChat: The State Secret That Never Was).
Defence teams across Europe have generally been unable to examine the complete raw datasets or every processing step between collection and the evidence file presented in court. If Europol treats reproducibility and documentation as necessary for AI-assisted analysis, the same reasoning applies to every link in a forensic chain that can end in a conviction.
ANOM shows why documentation matters. In a peer-reviewed article in the German journal Strafverteidiger (StV 2026, 441–448), our Co-Founder Christian Lödden and Dr Johannes Makepeace analysed original documents showing that the word "decrypt" had been replaced with "encrypt" in mutual legal assistance requests. The courts authorising the data collection were thereby misled about how the messages were obtained.
Where Is the Defence in Europol's Gap Analysis?
The defence does not appear in Europol's gap analysis. The words "defence", "defendant", "fair trial" and "disclosure" occur nowhere in the report. Its chain-of-custody and training chapters address first responders, laboratories, investigators, prosecutors and the judiciary, who are to learn how to evaluate digital evidence and present it in court.
That omission matters, because European law already requires that the defence be able to test this evidence.
Under Article 6 ECHR, criminal proceedings must be adversarial and respect equality of arms. In Yüksel Yalçınkaya v. Türkiye [GC] (no. 15669/20, 26 September 2023), the ECtHR found a violation of Article 6 § 1. The conviction rested decisively on data from the ByLock messaging application, and the domestic courts never answered the applicant's requests for the raw data and for an independent examination of its integrity.
The EU Charter of Fundamental Rights protects the right to a fair trial and the rights of the defence in Articles 47 and 48(2). In M.N. (EncroChat) (C-670/22, 30 April 2024), the CJEU ruled on Article 14(7) of Directive 2014/41/EU. National criminal courts must disregard evidence if the person concerned cannot comment effectively on it and the evidence is likely to have a preponderant influence on the findings of fact.
Measured against these standards and against Europol's own findings, the defence needs at least:
access to the raw data and to the hash values that secure their integrity,
disclosure of the tools, versions and validation reports used for extraction and analysis,
complete chain-of-custody records, from the first responder to the evidence file presented in court,
logs and documentation of every AI-assisted step, as Europol itself demands,
the opportunity to have the data examined by an independent expert,
access for defence lawyers and defence experts to the training and certification programmes now being built for law enforcement and the judiciary.
Encryption and the Proposal for a Manufacturer Key
Europol describes reliance on device-specific vulnerabilities for forensic acquisition as increasingly unsustainable, because such methods are neither consistently reliable nor certain to succeed. As one option, the report discusses manufacturers retaining a key, or a partial key, to unlock their devices, strictly under legally justified circumstances. In the same passage it acknowledges that introducing such vulnerabilities into devices poses significant security risks.
Should such a mechanism ever be introduced, the resulting evidence can only be tested in court if each access, its legal authorisation and the extraction process are fully documented and disclosed to the defence. Without that, another step of the forensic chain would sit beyond the reach of any challenge.
Pending Tests: Prudniez (C-625/25) and the e-Evidence Regulation
The questions raised by the gap analysis are already before the courts. In Prudniez (C-625/25), a reference for a preliminary ruling from the French Cour de cassation, the CJEU is asked which effective remedies must be available against SkyECC evidence transmitted under European Investigation Orders. The yardsticks are Article 14 of Directive 2014/41/EU and Article 47 of the Charter.
JDT Co-Founders Christian Lödden, Justus Reisinger and Guillaume Martine represent the defence, and the Advocate General's Opinion is announced for 19 November 2026. Our earlier post on Prudniez describes how the Member States are split on the question.
Cloud data will increasingly reach criminal proceedings through the e-Evidence Regulation (EU) 2023/1543, applicable since 18 August 2026, whose Article 18 provides for effective remedies (see our overview of the e-Evidence Regulation). The gap analysis notes that investigators depend on service providers for cloud data and that such data can be volatile and stored across several jurisdictions. Complete documentation of each production and acquisition step will therefore decide whether the defence can test what reaches the court file.
Why Digital Evidence Cases Require Specialised Defence Counsel
Digital evidence cases are decided on technical detail: an unexplained gap in a log file, an undocumented tool version, hash values that do not match, a decoding step nobody can reproduce. Challenging that material requires lawyers who understand forensic processes and know the cross-border framework through which the data travels.
The Joint Defense Team (JDT) is a network of criminal defence lawyers from Belgium, France, Germany, Italy, Montenegro, the Netherlands and Switzerland that coordinates the defence in cross-border cases built on digital evidence, above all EncroChat, SkyECC and ANOM, including cases involving Europol. JDT members:
represent the defence before the CJEU in Prudniez (C-625/25) on SkyECC evidence,
act as cassation counsel on ANOM evidence before the Dutch Supreme Court (Hoge Raad),
have published peer-reviewed research on the ANOM operation (StV 2026, 441–448),
took part in the Council of Europe's Octopus Conference 2026 in Strasbourg on cooperation against cybercrime and on electronic evidence.
Because our members practise in several of the jurisdictions where these datasets were collected and later used, we can follow the evidence across borders and compare how courts in different states deal with the same material.
Conclusion
Europol's gap analysis is a plan to equip investigators for a time in which almost every criminal case involves digital evidence. Its candid findings on tool validation and the chain of custody also give courts a reason to take defence challenges seriously. Where investigators themselves cannot always reproduce their results, the defence must be given the means to test them.
As the EU invests in forensic capacity for law enforcement, equality of arms requires the same attention to disclosure and to independent expert review of the data. The JDT will continue to raise these questions in national proceedings and before the European courts.
If you face proceedings built on EncroChat, SkyECC, ANOM or other digital evidence, contact the Joint Defense Team.
Frequently Asked Questions
What is Europol's "Digital forensics: gap analysis"?
It is a report published by Europol on 16 October 2026 and coordinated by the European Commission. It assesses the digital forensic capabilities of law enforcement in the EU Member States and recommends investment in tools, standards, AI governance, shared platforms and training.
Does the Europol report address defence rights?
No. The words "defence", "defendant", "fair trial" and "disclosure" do not appear in the report, which addresses investigators, prosecutors and the judiciary. The reliability problems it identifies, such as fragmented tool validation and manual chain-of-custody records, still directly affect a defendant's ability to challenge digital evidence in court.
What does Europol say about AI in digital forensics?
Europol states that AI must not be used as a black box. Every AI action should be logged, analyses must be repeatable and, where necessary, manually verified, and analysed files must remain unaltered so that results can be reproduced in court.
Why is the report relevant to EncroChat, SkyECC and ANOM cases?
It confirms from the law enforcement side that tool validation is fragmented, that results of proprietary tools may not be easily reproducible and that chain-of-custody documentation is largely manual. Defence teams raise the same concerns against encrypted-communications evidence.
Which legal standards protect the defence's right to test digital evidence?
Article 6 ECHR, as applied by the ECtHR Grand Chamber in Yüksel Yalçınkaya v. Türkiye (2023), and Articles 47 and 48(2) of the EU Charter. In M.N. (EncroChat), C-670/22 (2024), the CJEU held that national criminal courts must disregard evidence the defendant cannot comment on effectively if it is likely to have a preponderant influence on the findings of fact.
What is the chain of custody for digital evidence?
The chain of custody is the documented record of who seized, copied, transferred and analysed a piece of digital evidence, and when. It allows a court to check that the data presented is the data originally collected. Europol's gap analysis finds that these records are still kept largely by hand across the EU, which creates a risk of errors and gaps.
Sources
Europol, Digital forensics: gap analysis, Publications Office of the European Union, Luxembourg, 2026
European Commission, Roadmap for lawful and effective access to data for law enforcement, COM(2025) 349, 24 June 2025
ECtHR (Grand Chamber), Yüksel Yalçınkaya v. Türkiye, no. 15669/20, 26 September 2023
CJEU (Grand Chamber), M.N. (EncroChat), C-670/22, 30 April 2024
CJEU, Prudniez, C-625/25, pending
