Turner, R. v

Analysis and presentation of mobile telephone billing data are not expert evidence merely because they assist attribution of a telephone to a user. An analyst without coverage expertise must not express an opinion that a mast served a particular address. A mistaken use of specialist coverage terminology will not make a conviction unsafe where its limits were made clear and the issue was not critical.

Late call-data analysis may be admitted where it could not practicably be undertaken until a defendant identified the phones accepted as his or hers, provided the defence receives adequate time to respond. An unchallenged evidential point cannot ordinarily found a later hearsay complaint, and a formal irregularity without prejudice will not render a conviction unsafe. A summing up must be assessed as a whole.

The appellant was tried in the Crown Court at Leeds before Judge Bayliss QC and a jury. He was convicted of conspiring to supply cocaine and conspiring to transfer criminal property. He received 20 years’ imprisonment for the drugs conspiracy and a concurrent six-year sentence for the money conspiracy.

At trial, the prosecution relied substantially on telephone billing-data analysis to attribute a number of mobile telephones to the appellant. After he identified only shortly before trial which numbers he accepted as his, the prosecution served further co-location and surveillance-correlation analysis. The judge admitted that material.

The appellant appealed against conviction. He contended that the telephone analyst had impermissibly given expert cell-coverage evidence, that surveillance material was inadmissible hearsay, that the late material caused unfairness, and that the summing up was inaccurate and unbalanced. The central issue was whether any of those matters rendered the convictions unsafe.

1. Appeal against conviction dismissed. None of the grounds demonstrated that either conviction was unsafe.

2. The telephone analyst’s work in assembling, analysing and portraying call-data records was not expert evidence. It did not require the specialised expertise that marks an expert witness. Her proper role was to identify, from billing data, matters such as the most frequently used mast and the relationship between calls, locations and other evidence. Attribution remained a matter for the jury on the whole evidence.

3. The analyst was wrong to use the specialist expressions “serving mast” and “home mast” if those expressions conveyed that she could confirm coverage at the appellant’s address. Coverage required a radio-frequency survey and was outside her expertise. However, her cross-examination, the judge’s interventions and the summing up made those limits clear. Coverage was not a critical issue, and there was no evidence that the relevant masts did not cover the address. Any error therefore did not undermine the safety of the convictions.

4. The court did not need to determine whether a hearsay notice was required in addition to the agreement condition in section 114(1)(c) of the Criminal Justice Act 2003. The surveillance sightings used for correlation were not disputed at trial, and the officers were available to be called if necessary. In any event, any formal irregularity could not possibly have affected the safety of the convictions.

5. The further co-location and correlation analysis could not realistically have been prepared until the appellant identified the numbers he accepted as his. The judge gave the defence adequate time to address the relatively modest new material, and no prejudice was shown. Read as a whole, the summing up accurately stated the limits of the telephone evidence, the defence challenges and the jury’s function. The application for permission to appeal against sentence remained adjourned.

• Court of Appeal (Criminal Division): Dismissed the appellant’s appeal against conviction. His application for permission to appeal against sentence was adjourned for a later hearing with a co-defendant’s application.
• Crown Court at Leeds: The appellant was convicted by a jury of conspiracy to supply cocaine and conspiracy to transfer criminal property. He was sentenced to 20 years’ imprisonment for the drugs conspiracy and six years’ imprisonment concurrently for the money conspiracy.