The Court of Appeal ruled that a trial judge wrongly excluded telephone records and cell-site analysis in the case against two anonymised respondents, but did not decide whether their acquittals should be quashed or whether they should face a retrial.
The Director of Public Prosecutions brought the appeal under section 23 of the Criminal Procedure Act 2010, as amended. The Court, in a judgment delivered by Mr Justice Birmingham on 14 June 2016, found the disputed material amounted to “compelling evidence” under the legislation. It said it would hear further submissions on what orders should follow, including the respondents’ arguments on whether a retrial was appropriate.
The respondents, identified in the judgment as C.C. and M.F., had been acquitted in January 2015 in Dublin Circuit Criminal Court. They faced one count of robbery and four counts of false imprisonment arising from a 2005 tiger kidnapping and robbery. The prosecution sought to use call data records and cell-site analysis to show calls made by phones of interest and their general movement, including from the Raheny area towards the Wicklow Mountains.
At a pre-trial hearing on admissibility, the Circuit Court judge excluded the phone evidence. The evidence included call records and analysis based on network data. Witnesses said the cell recorded for a call might not have been the first cell the handset attempted to use: calls could be redirected if a cell was busy or out of service. The analysis relied on predicted coverage plots; the court had not heard evidence that the relevant networks were fully operational on the dates in question.
The Court of Appeal said the trial judge had gone too far in requiring authoritative evidence that the computerised systems were operating properly on those dates. It found there was no evidence that the systems had failed to record calls as intended. Whether a call might have been redirected, and how that affected conclusions about a handset’s location, went to the weight of the evidence rather than its admissibility, the court said.
The prosecution’s case relied on the phones’ general direction of travel, not on proving the precise location of each call. The appeal court also rejected a preliminary objection that the evidence could not qualify as compelling because other evidence had not been presented to the jury before the ruling. It said earlier proceedings included evidence that could be considered for that statutory test.
The judgment noted that the respondents’ earlier convictions, arising from a 2009 trial, had been quashed in 2012 following a Supreme Court ruling concerning search warrants. The 2015 proceedings ended in acquittals after the phone evidence was excluded. The Court of Appeal’s June 2016 ruling resolved the admissibility issue and found the evidence compelling; the question of retrial remained for further submissions.