The Court of Appeal has allowed Christopher Crowe’s appeal against his conviction for sending a menacing message to a Garda sergeant, ruling that voice identification evidence admitted at his trial lacked the minimum cogency needed to be heard by the jury.
Crowe was convicted by a jury in April 2011 and sentenced to three years in prison. The charge arose from a threatening telephone call to Detective Sergeant Denis Smith in November 2008. Crowe appealed both conviction and sentence.
At trial, Smith said he recognised Crowe’s voice after listening to about 15 seconds of an interview recording the day after the call. Smith was certain the voices matched, but could not identify a particular accent or other feature on which he based that conclusion. The recording was played informally, without comparison voices or a record of which interview segment had been used. The trial judge admitted the evidence and gave the jury a strong warning about the risks of voice identification and the weaknesses of the procedure.
The Court of Appeal accepted that the evidence had some cogency, but said it was slight. Smith knew Crowe was the sole suspect, creating a risk of subliminal bias, and the lack of identifying features made the evidence difficult to test. The court concluded that a warning, however comprehensive, could not make up for evidence that fell below the minimum threshold for admission.
The court also found that using the interview recording for identification breached regulation 17 of the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, which required the interviewee’s written consent. Given the overall unfairness of the procedure, it declined to excuse the breach under section 7(3) of the 1984 Act. It rejected the separate argument that using Crowe’s voice without consent breached the privilege against self-incrimination.
The judgment noted that the prosecution case also included circumstantial evidence, including that the call came from a phone owned by Crowe and found beside him while he slept, and evidence about access to its security code. The jury had also heard two defence witnesses say that one of them had made the call; the Court of Appeal said the jury was entitled to reject their account after cross-examination.
The court held that the trial judge erred in admitting the voice identification evidence and that the conviction could not stand. It allowed the appeal. The judgment does not specify a retrial or record a separate order concerning sentence.