EWJ June 61 2025 web - Flipbook - Page 106
Telephone Evidence in Criminal
Proceedings; Tactics & Strategy
by Jonathan Lennon KC, Barrister
The ubiquitous mobile phone has transformed
criminal investigations and prosecutions over the last
15-20 years. Mobile phone evidence is a key tool in
the fight against crime. But the phone in your pocket
can also become a confession of a crime never committed. Evidence of presence at a scene, of messages
received or comments made can sometimes give a
false impression. How does an un-witting suspect on
the wrong end of phone evidence begin to tackle what
may seem like formidable evidence against him or
her?
There is no rule of law that provides that phone
numbers being attributed to certain suspects have to
reach a certain gold evidential standard. No phone
may be discovered at all. The police might secure the
call records for John’s phone and discover that that
phone is used to call John’s Mum, John’s work-place
etc etc, creating a stronger attribution of that phone
number to their suspect. But other people than just
John might have use of the same handset. Sometimes
attribution evidence can be very weak.
In one case the author was involved in an email sent
via a handset attached a video clip that the Crown asserted was created on a certain date – a date that my
client accepted that he had the phone. The video clip
was important evidence. The expert who claimed the
date of creation was cross-examined and it transpired
that the date of creation was in fact the date the clip
was sent to the phone – not the date the clip was made.
On that date my client could not have had the phone.
That was a critical issue for the defence.
The problem for those facing serious charges is that
the calls/texts etc may be quite innocent and the
accused simply cannot remember why he made or received them. He or she may be asked about a series of
one minute calls made many months earlier. The
other problem is the danger of guilty association; in
other words the Defendant has been up to no good,
but of a completely different type, and much less serious than the detective at the interview seems to be suggesting. A police theory then appears to be backed up
the phone evidence.
If attribution is an issue it is critical to make that clear
in the Defence Statement so that the prosecution are
obliged to disclose other parts of the phone evidence
(including from other seized devices) which might
detract from the Crown’s theory.
So what are the issues in a phone evidence case that
Defendants and their advisors should be considering?
Can phone evidence be challenged in Court?
Phone Attribution; Linking Devices to Defendants
In order for the police to suggest that a suspect has
been in phone contact with another suspect the police
need to know the phone numbers of the two concerned. Many mobile phone accounts are of the pay as
you go sort –this means the network provider, Vodafone, EE etc will probably have no record of the name
and address of the subscriber. This is not a problem
for the police when the phone is seized directly from
a suspect on arrest. It is a problem when a series of incriminating text messages, or calls patterning, are
then found on the phone from another number that
cannot be traced through the network provider.
Hearsay
The law on hearsay in criminal proceedings was
codified in the Criminal Justice Act 2003. This can be
important in phone cases as the critical piece of evidence might be a social media message from A to B
but implicating C – this could be hearsay.
The default position is that a “matter stated” in
hearsay material is inadmissible unless it qualifies for
admission under s114(1) of the 2003 Act. That gateway is quite wide. If a text/email etc is hearsay that
does not necessarily mean it cannot be admitted in evidence. There is not the space in this article to give a
full account of the CJA hearsay provisions and the significant amount of case law it has generated. However,
in the context of mobile phone evidence one case in
particular is instructive; R Twist [2011] EWCA Crim
1143.
In that situation the police will hope that the call/text
message is to or from someone logged into the mobile’s memory/SIM card address book. For instance,
there may be a series of calls just after a suspect’s arrest from someone ‘John’ – ‘John’ may also have sent
an incriminating text message. The police may suspect that ‘John’ is ‘in on it’ and believe their man may
be John Smith – someone known to the police. The
police now, ideally, need John Smith’s phone to be on
him when he is arrested so that the number they have
for ‘John’ – is proved to be John Smith’s. This is one
way of making an attribution.
EXPERT WITNESS JOURNAL
In Twist the Court of Appeal considered messages
received by the Defendants (four conjoined appeals).
The Court focussed on the s114(1) test of ‘matter
stated’. Specifically the Act involved asking what it was
that the party was seeking to prove – i.e. what did the
prosecution say the hearsay message actually demonstrated? Most communications would contain one or
more ‘matters stated’, but it did not always follow that
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