Calland, R. v

Cell-site records may reliably show the date, time, duration and mast through which a call was routed. They do not, without more, prove that a phone was at a nearby particular location or that its user made the call there. Where the prosecution relies on that further inference and it is disputed, appropriate expert evidence will usually be needed before the jury may safely draw it. The need for expert evidence depends on the real issues and the intended use of the evidence.

On a prosecution appeal under the Criminal Justice Act 2003, a discretionary evidential ruling will not be reversed merely because another conclusion was available. The ruling must involve legal error or be one the judge could not reasonably have made.

The respondent was charged with conspiracies to supply diamorphine and cocaine. The prosecution alleged that he used a mobile telephone associated with the conspiracies. It relied on police observations of him using a phone and records showing that the relevant telephone’s calls were routed through particular mobile-phone masts.

At the Crown Court at Preston, the trial judge excluded evidence identifying the postcode areas of the masts on 11 specified occasions. She permitted the prosecution to rely on the broader evidence that the calls were routed through masts in Barrow or Liverpool. The prosecution sought leave to appeal under section 58 of the Criminal Justice Act 2003, having entered the required acquittal agreement. The central issue was whether the judge had acted unreasonably in requiring expert assistance before the jury could draw the proposed location inference.

Decision

1. Leave to appeal was refused. The judge’s ruling was affirmed. Under the prosecution’s acquittal agreement, the respondent had to be acquitted of both counts.

2. Records of the time and routing mast for a mobile-phone call may be uncontroversial and important evidence. Expert evidence is not required in every case involving cell-site material. Its necessity depends on the issues actually raised and on the inference for which the evidence is used.

3. Here, the prosecution did not merely seek to show that the respondent and the relevant telephone were in the same town. It sought to infer, from his proximity to a particular mast when the telephone used it, that he was making the relevant call. The location of a mast was not evidence that it served the nearby place where the respondent was observed, that it gave that place the strongest coverage, or that it would probably transmit a call made there. In the absence of agreement, that inference required appropriate expert evidence.

4. The trial judge was therefore entitled to prevent the jury from making a speculative assumption lacking an evidential foundation. Her ruling still permitted accurate evidence that the telephone and the respondent were respectively in Barrow or Liverpool at relevant times. It did not mislead the jury.

5. Applying the appellate approach stated in R v R [2008] EWCA Crim. 370 and R v B [2008] EWCA Crim. 1144, the court held that a discretionary ruling is not vulnerable merely because a different balancing exercise was possible. The ruling was not unreasonable; it was correct on the circumstances of this case.

The court also directed that the section 71 reporting restrictions under the Criminal Justice Act 2003 should not apply, and ordered the respondent’s appeal costs from central funds, to be taxed.

• Court of Appeal (Criminal Division): The prosecution’s application for leave to appeal under section 58 of the Criminal Justice Act 2003 was refused. The Crown Court ruling was affirmed and the respondent was acquitted under the prosecution’s acquittal agreement.

• Crown Court at Preston: On 16 November 2017, Her Honour Judge Lunt excluded postcode-level mast-location evidence on 11 occasions, while allowing broader evidence that calls were routed through masts in Barrow or Liverpool.