Telephone Evidence in Criminal Proceedings; Tactics & Strategy

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?

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.  

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.  

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.

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.

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.  

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 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 any would be the matter that prosecution was setting out to try to prove. However, where a party sought to prove that a matter stated in the communication was fact, as opposed to opinion or comment, then the rule against hearsay would be engaged.

As a guide the Court indicated that it would be helpful to approach the question on whether the hearsay rules applied in this way:

(i)  identify what relevant fact (matter) it is sought to prove;
(ii)  ask whether there is a statement of that matter in the communication. 
If not, then no question of hearsay arises (whatever other matters may be contained in the communication);
(iii)  If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, it is hearsay. If not, it is not.

The Court emphasised that in deciding whether a communication was hearsay or not, might not be the end of the issue of admissibility.  The fact sought to be proved had to be a relevant fact – not just something the prosecution wanted the jury to hear against the Defendant.  In that case, even if the material passed the Twist tests the evidence would be inadmissible anyway.

In R v Doyle [2018] EWCA Crim 2198, the Court of Appeal considered a drugs case where a phone had been discovered in a drugs raid.  Text messages were discovered that had been sent to D, one of which accused D of opening up packages of ‘weed’ – something which D denied in reply.  The Judge found the messages were not hearsay and admitted them as evidence.  In fact, as the Court of Appeal found, the text allegation was hearsay as it was tendered to prove the truth of D’s involvement with the cannabis.  However, though the trial Judge had erred the Court of Appeal applying the s114(1) test of whether the hearsay should be admitted in the interest of justice (a very wide test) found that it would have been admissible hearsay in any event and upheld the conviction.  

Proving Conspiracies

The essential element of the offence of conspiracy is evidence of an agreement with others to commit an offence.  The ‘agreement’, of course, is never a signed document expressing a contract to commit a crime.  The Crown will simply invite the jury to infer the agreement from the surrounding circumstances.  This will often mean heavy reliance on the phone contacts between suspects and also the timing and frequency of those contacts.  

For example, the Crown might invite a jury to infer that one series of calls by a Defendant to others is the ‘arrangement stage’, and the next series of calls, happening just after the arrest of those others, is the Defendant desperately trying to find out what has happened to his drugs, guns or whatever.  Indeed the police have sometimes use the tactic of making arrests of suspects lower down the command chain first, just to see later what the digital reaction is of those higher up.

In conspiracy cases there will often be significant areas of evidence which, on the face of it, appears damming, but which in fact are not admissible against a particular Defendant.  

A basic rule of evidence is that, ordinarily, acts done or words uttered by ‘A’ cannot be evidence against ‘B’.  But in conspiracy cases there is the so-called ‘acts and declarations’ rule.  This provides that the acts or declarations of any conspirator or co-accused made in furtherance of the alleged common design may be admitted as part of the evidence against any other conspirator. The Criminal Justice Act 2003 preserves this rule – i.e. as an exception against the common-law exclusion of such hearsay evidence; s118(1).  

To be admissible against a co-Defendant the declaration in question must be in furtherance of the common design; it must; “be demonstrated to be one forming an integral part of the machinery designed to give effect to the joint enterprise” – R v Reeves, unrep. Dec 4, 1998.  Descriptions of past events etc are not made in furtherance of the common design and are therefore not admissible against anyone other than the maker.  For example, an undercover officer covertly records suspect X discussing the preparations for an offence and person Y is mentioned.  This could be admissible evidence against both X and Y in a conspiracy case.  

But the acts and declarations rule can, and very often should, be tested by the defence.  In R v Gray and Liggins [1995] 2 Cr. App. R 100 the Appeal Court went back to basic principals by recalling that; “the basic reason for admitting the evidence of the acts or words of one against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to act to or speak in furtherance of the common purpose on behalf of the others.  From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place…..can become admissible under this principal against his companions in the common enterprise.”  

Thus, it maybe that X’s comments can in truth be shown to be no more than grandstanding or describing past events – and even if that is not clear there remains a discretion for the Judge to direct the jury not to hold X’s words against Y.

Cell-Site Analysis

Mobile phones can of course be powerful evidence of where a particular individual was at a certain time.  The evidence comes usually from a police officer, but sometimes an expert briefed by the Crown will consider information from the network provider about which of their ‘cell-sites’ were used in certain calls; i.e. which cell picked up or received the radio wave transmissions carrying the call.  

If the police want to show the movement of an individual from one place to another then the expert can show how the phone signal passed from one cell site to another as the handset moved, or simply show that some time after one call was made another was made that used a different cell.  It has to be bourne in mind that in rural areas the use of a particular cell may not mean the user is very close to that site, whereas in places like central London the logging of a call on a particular site invariably means the handset is very close by – perhaps within metres.  Such evidence, coupled with evidence of calls made around certain key events, may provide the prosecution with compelling material that needs very thorough analysis by anyone defending in such a case.

Such evidence may, at first blush seem difficult to challenge.  But cell-siting of a mobile phone can have an impact greater than its actual worth.  The author was recently involved in a case where the prosecution cell site expert confirmed that a call made by my client was and picked on a certain cell mast, but the detail of the data showed it was picked up on a particular section of the mast – a particular azimuth.  This meant that my client was likely to be one side of a busy west London Square when he made the call – and not the other, where his co-defendant was.  That small detail was critical in putting the cell-site evidence in its proper perspective and ultimately led to the acquittal of my client who was facing very serious charges.  

Conclusion

Telephone evidence can make or break a case.  Mobile phones provide a very personal picture of a Defendant because they are such a large part of modern life for all of us.  The challenges outlined here e.g. attribution, hearsay etc are not easy topics.  There is often a dense amount of material to consider – more often in the unused material as opposed to the used evidence.  As ever early preparation is the key if there is to be any hope of mounting any kind of challenge to this sort of evidence.  

Jonathan Lennon KC is a Barrister specialising in serious/ complex criminal defence cases at Doughty Street Chambers, London. He has extensive experience in all aspects of financial and serious crime and the Proceeds of Crime Act 2002.  He is ranked by the Legal 500 and Chambers & Ptnrs.  

L500 2025; “Jonathan works tirelessly for clients and is completely on top of every matter he deals with. He has that rare quality of being able to being able to translate the most complex of issues to make sure that both the jury and the client are fully engaged in the proceedings.”