Telephone Evidence – Tactics and Strategy

Telephone evidence is nowadays often key to an investigation or subsequent prosecution. Telephone evidence in the firm of 'cell site' evidence can help identify where a suspect was at a certain time and date. The mobile telephone is a personal tracking device and in addition to revealing location, can help the police and prosecution identify who you have been calling, texting and when. The content of text messages can be used by the police and prosecution to support motive, to support a joint enterprise or common purpose, to support an alleged agreement or conspiracy, or otherwise be used to assist in undermining a suspect's case or supporting a prosecution.

The problem with the prosecution relying telephone evidence is that it is often open to abuse, misinterpretation and misunderstanding. Take, as a basic example, the sending of a text message. The only person who really knows and understands the true intention of sending a text message, its meaning and purpose is the sender. If someone else reads that text, in a wholly different context, such as the Police, that text message can be misconstrued and before you know it, the police have attributed to that message a totally different intention and meaning. The Police can ultimately then invite the court to conclude that the sender of the message had different motives and intentions.

Telephone evidence is used in a variety of prosecutions including those alleging there has been a conspiracy between offenders to commit an offence or offences. In these the prosecution will often invite the jury to infer there has been an agreement (a conspiracy) to engage in unlawful conduct simply because two alleged co-conspirators have had telephone contact, or that this said the be involved have been at or near to the scene of the offending conduct.

The problem for those facing serious charges is that the calls, texts and visits to locations can be quite innocent. It may be that the telephone evidence is old which leaves an accused at a distinct disadvantage of having to try and recall where he or she was, or trying to remember what the true intention and meaning of a call or text was. It may be that an accused has been in regular touch with someone they believe is a perfectly law abiding citizen and yet it turns out they have been up to no good.

Defending conspiracies in these circumstances can be very challenging. Ordinarily the prosecution have a very strict burden in proving the guilt of an accused, but with telephone evidence defendants are routinely in a position of having to prove themselves that telephone contact with another suspect is quite innocent.

Instructing a lawyer who understands how telephone evidence is interpreted and misinterpreted by the police and prosecution is so important. Prosecutions involving telephone evidence can give rise to one or more of the following issues to deal with:

• Phone attribution
• Tracking and Bugging
• Understanding and interpreting telephone Charts and diagrams
• Understanding phone masts and how they work
• The instruction of telephone experts for independent phone analysis
• Understanding and interpreting telephone billing evidence
• Challenging the admissibility of telephone evidence due to unreliability
• Objecting to prosecution delays in serving telephone evidence
• Requesting additional disclosure which often undermines a prosecution case

Having confidence that your legal team can deal confidently with these issues will help support the prospects of a favourable result.

Wells Burcombe have been instructed in numerous complex criminal cases involving telephone evidence.