Court of Appeal quashed acquittals and ordered retrial after finding trial judge erred in excluding compelling evidence.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

38/15

39/15

The People at the Suit of the Director of Public Prosecutions

Appellant

V

C.C. and M.F.

Respondents

Judgment of the Court delivered on the 14th day of June 2016

by Mr. Justice Birmingham

1. This is an application brought by the Director of Public Prosecutions pursuant to s. 23 of the Criminal Procedure Act 2010, as

amended by s. 71 of the Court of Appeal Act 2014 (hereinafter “s. 23 of the Act of 2010 as amended”). It is understood to be the

first such application brought to the Court of Appeal since its inception. The Director is seeking:-

(a) A declaration that the court of trial erroneously excluded compelling evidence;

(b) An order that the subsequent acquittals be quashed; and

(c) An order that the respondents be retried in respect of all charges.

2. In January, 2015 the respondents stood trial in the Dublin Circuit Criminal Court (Her Honour Judge Mary Ellen Ring, as she then

was, presiding) in respect of one count of robbery and four counts of false imprisonment. In the course of judicial review proceedings

in the case of Niall Byrne and David Byrne v. The Judges of the Dublin Circuit Court and the Director of Public Prosecutions (Supreme

Court, Ex tempore, 17th February, 2015), brought by two other persons who had faced charged arising out of the same incident,

Charleton J. offered the following helpful summary of the facts that gave rise to the prosecution:-

“The main victim was working for Securicor in the transport of money for commercial purposes. As is well known, vans

carrying money are heavily armoured and on at least some of them, a sign can be seen stating that valuables within are

kept locked in a safe to which employees have no access. Rather than outright robbery, therefore intimidation has

become an alternative method of theft from security companies and banks. That is what happened here. On the evening

of Sunday the 13th March, 2005, a man working for the security firm came home with his young son from ordinary family

business and discovered on entering his home that his wife and other boy were being held at gunpoint by this gang. As

would be expected, they were disguised. He was kept in his home and the two small boys and their mother were taken

away at gunpoint. Overnight, and terrified as to their safety, he was told to follow particular orders with obvious menace

as to the consequences of disobedience. Arriving for work on that Monday, therefore, he followed his routine of driving to

work and clocking in as if in discharge of the normal duties of his life and employment. He followed instructions to drive a

van of which he had charge to a prearranged location. His fellow employees were made part of the duress under which he

operated through the gang photographing his imprisoned family under gun threat and which he, on orders, showed to

them in earnest of his predicament. On the van reaching its destination, it was stripped of its contents amounting to

some €2.23 million, a sum that has never been recovered. The van driver had insisted prior to going into work to speaking

to his family, seeking in earnest of their safety. The phone on which that call was made was coloured and the driver was

able to ascertain their safety before setting out as the puppet of the gang. Meanwhile, the degradation of the dignity of

these two children and their mother continued. They were held in the rear of a small van overnight in a location that was

probably somewhere in the Dublin mountains. On the following day, the criminals took the family and tied them up deep

inside a forest. They were left to fend for themselves without food, warmth or sanitation and terrified as to the safety of

the other imprisoned member of the family. Eventually they untied themselves and sought out help when they found a

public road. By this stage, the robbery had been completed. It would be totally unreasonable not to infer that

considerable fortitude will be needed by that family to leave these events in the past. Clearly an offence of this kind must

be ranked with the worst kind of criminal conduct.”

3. In essence then, the trial in the Dublin Circuit Court in January, 2015 concerned what has come to be known as a tiger kidnapping.

There was something of a history to the January, 2015 trial. In 2009 five individuals, including the two respondents CC and MF, David

Byrne and Niall Byrne (of whom mention has already been made), and one Jason Kavanagh, were tried in relation to offences arising

from the incident. Following a trial lasing 65 days, three persons, the two respondents to the present application and Jason Kavanagh,

were convicted and sentenced to terms of imprisonment: 25 years in the case of the second respondent, MF, and that of Jason

Kavanagh, and 12 years in the case of the first respondent. The jury failed to agree in the case of the other two accused, David

Byrne and Niall Byrne, and they were retried in 2011. The jury was unable to reach a verdict on this occasion also. When it was

proposed to bring them to trial a third time, they each sought an order of prohibition by way of judicial review. On the 17th February,

2015, the Supreme Court ruled that both Mr. Niall Byrne and Mr. David Byrne could be tried again, and their trial has been fixed for

January, 2017.

4. In April, 2012 the Court of Criminal Appeal set aside the convictions of the two respondents and that of Mr. Kavanagh. The

convictions were quashed because of the decision of the Supreme Court in Damache v. The Director of Public Prosecutions [2012] 2

I.R. 266. That decision had declared unconstitutional s. 29 of the Offences Against the State Act 1939, as amended, and accordingly

had implications for the investigation that had taken place in this case, which had seen s. 29 of the Offences Against the State Act

1939 invoked and a number of warrants issued pursuant to that section.

5. The case that the prosecution sought to mount against the respondents depended to a very significant extent on telephone

evidence. The evidence sought to be adduced was not confined to evidence in relation to phones allegedly linked to the two

respondents, but extended to phones linked to others alleged to have been participants in the crime. The prosecution interest in the

telephone evidence was twofold. There was first of all an interest in call data records (“CDRs”), i.e. a particular phone calling another

phone, the time of that call, the duration of the call, whether it was a phone call or a text message and so on. Secondly, the

prosecution sought to rely on cell site analysis (“CSA”) in order to establish the location from which various calls of interest were

made and by extension where the phone user was at that moment in time.

6. A voir dire on the issue of the admissibility of the telephone evidence commenced on the 19th January, 2015, which was Day 5 of

the trial. On the 21st January, the trial judge delivered her ruling, which was that the evidence should not be admitted, and on the

following day the jury was directed to acquit Mr. CC and Mr. MF.

7. Section 23 of the Act of 2010, as amended, so far as material, provides as follows:-

“(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence,

the Director, if he or she is the prosecuting authority in the trial, . . . may, subject to subsection (3) and section 24,

appeal the acquittal in respect of the offence concerned on a question of law to –

(I) the Court of Appeal,

...

(3) An appeal referred to in this section shall lie only where –

(a) a ruling was made by a court –

(i) during the course of a trial referred to in subsection (1) …

which erroneously excluded compelling evidence, or

(b) a direction was given by a court during the course of a trial referred to in subs. (1), directing the jury in the trial

to find the person not guilty where –

(i) the direction was wrong in law, and

(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be

satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.

...

(11) On hearing an appeal referred to in subsection (1) the Court of Appeal may -

(a) quash the acquittal, and order the person to be re-tried for the offence concerned if it is satisfied –

(i) that the requirements of subsection (3)(a) (i) or (b), as the case may be, are met, and

(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in

the interests of justice to do so, or

(b) if it is not so satisfied, affirm the acquittal.

...

(12) In determining whether to make an order under paragraph (a) of section (11) . . . the Court of Appeal . . . shall have

regard to –

(a) whether or not it is likely that any re-trial could be conducted fairly,

(b) the amount of time that has passed since the act or omission that gave rise to the indictment,

(c) the interest of any victim of the offence concerned, and

(d) any other matter which it considers relevant to the appeal.

(13) (a) The Court of Appeal . . . may make an order for a re-trial under this section subject to such conditions and

directions as it considers necessary or expedient (including conditions and directions in relation to the staying of the re-

trial) to ensure the fairness of the re-trial.

(b) Subject to paragraph (a), where the Court of Appeal . . . makes an order for a re-trial under this section, the

re-trial shall take place as soon as practicable.

(14) In this section ‘compelling evidence’, in relation to a person, means evidence which –

(a) is reliable,

(b) is of significant probative value, and

(c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury

might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.”

8. In the course of the appeal hearing, the respondents, and more particularly counsel on behalf of the first respondent, indicated

that if the Court concluded that the trial court had erroneously excluded compelling evidence and that the acquittals should be

quashed, they would wish for an opportunity to address arguments specific to the question of whether a retrial should be ordered.

The Court indicated that if that stage was reached, the respondents would be given an opportunity to address the issue.

9. A procedural issue has arisen from the manner in which the trial and voir dire proceeded in the Circuit Court. Counsel for the

respondents say that because of the procedures that were followed, the Director of Public Prosecutions is not in a position to

establish that compelling evidence, as that term is defined in statute, was wrongfully excluded. This argument is advanced in a

situation where the court embarked on the voir dire at a very early stage in the trial and before other relevant and probative

evidence had been put before the jury. To take just one example, the issue as to the admissibility or otherwise of telephone evidence

was addressed and determined before the prosecution adduced evidence linking any phone to any individual, including the

respondents. In a situation where there was a significant issue being raised about the admissibility of such evidence, which was going

to the heart of the prosecution case, it obviously made sense to address that issue before court time and public money was spent

addressing issues which might never arise.

10. The respondents point in particular to subs. (14)(c) of s. 23 of the Act of 2010, as amended, and say that because the other

evidence which formed part of the prosecution case had not been adduced at the point in time when the judge ruled that the

telephone evidence was inadmissible, it cannot be said that the evidence excluded, whether rightly excluded or wrongly excluded,

could be regarded as compelling evidence. The excluded evidence on its own would not have been sufficient to enable a jury to be

reasonably satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence. Other evidence would have been

required. According to the appellants’ argument, precisely because such other evidence had not been adduced up to the point in time

when the ruling excluding the evidence was made, it cannot now be said that the excluded evidence was such that, when taken

together with other evidence adduced in the proceedings, a jury might reasonably be satisfied beyond a reasonable doubt of the

person’s guilt in respect of the offence concerned.

11. The respondents in this case have identified an issue which has the capacity to cause difficulty. It may mean that if in a

particular case evidence is excluded, and as a result a directed acquittal is inevitable, the prosecution will nonetheless be obliged to

call all the other relevant evidence in the case in order to preserve their position under s. 23 of the Act of 2010, as amended.

Alternatively, it might lead to the issue, in respect of which another significant issue was expected to arise, having to be deferred

until after all the other evidence in the case had been adduced, even though there was a recognition that without the evidence, the

admissibility of which was challenged, the prosecution would have no case. By any standards, that is not a satisfactory situation, and

it is a matter which calls for legislative intervention.

12. However, it is of note that subs. 14(c) of s. 23 of the Act of 2010 refers to “proceedings” rather than to “trial”. That being so, in

the particular situation which is the subject of the Director’s present appeal, the Director is in a position to say that the other

potentially relevant evidence available to the prosecution had in fact been adduced at earlier stages of the proceedings, albeit not in

the same trial in which the challenged ruling was made.

13. The evidence in the first trial resulted in convictions, and the evidence in the 2011 retrial of Mr. Niall Byrne and Mr. David Byrne

was such that the judge felt the matter was properly one to be considered by a jury. In these circumstances the preliminary

objection taken by the respondents fails, and the Court must go on to consider the substance of the Director’s appeal.

14. Before considering the arguments that were made to the Circuit Court in the course of the voir dire, which arguments have largely

been repeated in the course of this appeal hearing, it may be of assistance to summarise the evidence that was adduced during the

course of the voir dire.

15. The first witness heard during the voir dire was Assistant Garda Commissioner Ray McAndrew. He gave evidence that in 2005 he

was the Detective Chief Superintendent in charge of the security and intelligence division at Garda Headquarters. He received a

number of applications from other members of An Garda Síochána requesting details of incoming and outgoing calls and text messages

as well as some cell site analysis in respect of a number of mobile phone numbers over a particular period of time. He said that, having

satisfied himself that the applications were being presented in order to assist in the proper investigation of serious criminal activity

and that they were in accordance with s. 13 of the Interception of Postal Packets and Telecommunications Messages (Regulation)

Act 1993, he forwarded the written requests for information to the relevant service providers.

16. In relation to the retrieval of call data records (“CDRs”), the court heard from Ms. Maureen King, Head of Fraud and Security with

Meteor. Ms. King explained her role in liaising with the law enforcement authorities and dealing with requests sent to her. She outlined

how requests sent to her were processed automatically by putting in what she described as the “parameters”, comprising the

numbers in respect of which records were required to be retrieved as well as the dates and times bracketing the period of interest,

and that then the information was retrieved.

17. In the course of her cross examination, Ms. King accepted that under the relevant legislation that applied in 2005, Meteor was

under an obligation to retain data until March, 2008 after which the data was then automatically deleted. It was still the case that

the data was automatically removed from the database. She accepted that if it was the situation that the defence in this case were

served with those records in December, 2008 (as appears to have been the case), then they would not have been in a position to

examine the CDRs as they would already have been destroyed.

18. Mr. Stephen Young, who described himself as being “the enterprise architect for the billing and charging domain Meteor” and

involved in looking after the long term and strategic development of all the systems relating to billing and charging (which meant that

he had an expertise in how the billing system operates), explained the concept of a CDR. He thus explained that when a call was

made on the Meteor network, various pieces of information were put into the CDR, including the location code of where the call was

being made, the date and time of the call, the caller and callee, the mobile originating number and terminating number, and whether it

was a text or voice call.

19. The court heard evidence in relation to the cell site analysis (“CSA”) regarding the Meteor network from Mr. Fergus O'Toole, who

worked as a Senior Engineer in Meteor in 2008, and he gave evidence that he had been called to examine the various CDRs that had

been produced for the purpose of the investigation and to assist in the location of the “cell sites” associated with the cell identities

(“cell IDs”) that had been recorded in those documents. The court also heard evidence from Mr. Ivan O’Flynn, Principal Radio Engineer

for O2 between 2005 – 2009, and Mr. Douglas Shirran, an engineer with Vilacom Engineering Limited, in relation to the cell site

analysis conducted in respect of the O2 mobile phone numbers. As stated, the purpose of this evidence was to help identify the

movement and location of the handsets in question.

The Accuracy of the CDR and CSA Evidence

20. The issue that arises as the central subject matter to this appeal concerns the accuracy of the CDR, or more specifically the

capacity of those records to mislead if undue reliance is placed on them.

21. It transpired during the course of the evidence that the “cell ID” given in the CDR may not in certain circumstances have been

the closest and original “cell site” through which the handset (mobile) had been attempting to place the call, with the result that the

cell site analysis conducted on the basis of that “cell ID” might also be inaccurate or misleading. It was explained in evidence by Mr.

O’Toole that a “cell site” denoted a mast or rooftop antenna which consists of approximately 3 sectors that provide 360 degree

coverage to a certain area, and that each cell site had a unique “site ID” to which the relevant cell number was appended, thereby

giving the “cell ID” in the CDR. Similar evidence was given in this respect by Mr. Shirran with regard to the O2 network.

22. On the evidence, it was stated that the aforementioned scenario could occur when the original cell site was either too busy or

not in operation. In respect of the latter, Mr. Shirran and Mr. O’Toole agreed that there would be no record in either cell site (base

station) that a handset in question had been closer to the inoperative cell site rather than the one described in the CDR. In respect

of the former, both men gave evidence that an outgoing call would be rerouted to the nearest available neighbouring cell, if possible

(i.e. if the handset was in the effective coverage area thereof), but that it would only be this latter cell which would be displayed in

the CDR should the call be successfully established. Both men also gave evidence, respectively, that the records of such a pre-call

rerouting event would be stored, in respect of Meteor, by Eircom (as statistics) and, in respect of O2, by a mediation centre. Though,

neither was able to comment on that information or whether it was still available, and thus to the best of their knowledge that

information had not been used in the compilation of the CSA evidence.

23. Further, in terms of the accuracy of the CSA itself, the court heard evidence that the CSA evidence furnished constituted

predictive coverage, “best server plots” produced by a “planning tool”, and had not been confirmed by a “drive test” nor aided – to

the knowledge of the witnesses – by the relevant “cell histories”.

24. The court was told that a “drive test” encompassed physically driving out and using software to test the network, i.e. test the

signal at any one location at any one time. The court heard that the purpose of this test was usually to benchmark the network but

that it could also show how topography was affecting what the planning tool would have predicted the signal or coverage in a given

area to be.

25. Similarly, “cell histories” were described to the court by Mr. O’Flynn as containing the changes made to a particular cell, such as

variations in height, whether a tilt was added, whether the antenna type had been changed, etc., and he confirmed that in relation

to O2 such records were kept, and should be kept, as a matter of basic housekeeping.

26. Finally, Mr. O’Toole acknowledged to the court that his CSA had been conducted in 2008, approximately 3 years after the relevant

dates in question. Accordingly, he confirmed that he had removed from the analysis certain “cell sites” which had been built in the

intervening period and further that, at this juncture, there was no way of knowing whether the remaining cell sites listed therein -

other than the ones identified in the CDRs - had been operational on the dates in question.

27. As a result, in light of this evidence, the trial judge concluded at the end of the voir dire that appropriate authoritative evidence

(in this respect) must also encompass evidence of the function and operation of the telephone network system and/or evidence that

the relevant telephone networks were fully operational on dates relevant to the alleged criminal activity. It is essentially against this

determination that the appeal is directed.

28. While some of the evidence, the engineering evidence in particular, was quite technical, the evidence which the defence was

seeking to adduce was actually quite straightforward. Their interest was in highlighting the fact that even though the records showed

a particular call routed via a particular cell site, it might be that that was not the cell site that was first interrogated and that the call

might have been diverted to that site whether directly or indirectly.

29. As indicated, the prosecution’s interest in the telephone evidence was twofold: first, an interest in establishing what calls were

made from certain phones, including the dates and times at which potentially relevant calls were made, their duration and so on, and

secondly the location from which such calls were made. The capacity of the prosecution to contend that the telephone evidence was

significant, and certainly to suggest that it was compelling, is dependent on the introduction of evidence addressed to each of these

two topics. The focus of attention in the course of the voir dire related to the latter issue. In particular, the prosecution was anxious

to establish, and the potential relevance of which they were in a position to demonstrate, that a number of phones of particular

interest were active in the Raheny area, were active on the route between North-East Dublin and the Wicklow mountains, and were

again active close to the Strawberry Beds, which is where the money was dropped off at the gang’s insistence. The prosecution

sought to achieve this by identifying in evidence the cell through which each call was made.

30. The significance of the evidence emerges from an exchange that took place between the trial judge and Mr. O'Toole, the Meteor

engineer, at the conclusion of his evidence. The exchange was in these terms:-

“J. Yes I just that – can I take you to No. 55, 54, 53 and 52 on the map the sites themselves on the map?

A. yes.

J. I am walking in the southerly direction from 55?

A. Yes.

J. I make a phone call in that area, it will be picked up at the site at 55?

A. Yes.

J. As I move southerly, I make another phone call, but for whatever reason the site at 54 is too busy to take it, is there

any record of me having attempted to make a call to connect to 54?

A. No.

J. It re-routes me to 52 and it is picked up by 52, I continue walking and in the vicinity of 53 I make another call, it’s

picked up by 53?

A. If you – if its one …

J. If you are mapping it?

A. If it was one call, it would be ---

J. I’m saying I am making three calls first?

A. Then its three different locations.

J. Three different locations?

A. Yes, yes.

J. So I would appear to be going west and then south?

A. You would go west – you would have started at 50 –

J. You said 55? Yes?

A. You would have started we’ll say there, and you would have went west and you would have come back over?

A. Correct.

J. Even though I was actually walking -?

A. Correct, again it would be that effective coverage of that?

J. Yes

A. So 52 could almost touch 55, 54, it depends what is in between from the there might be another –

J. As I say do you see the yellow road that goes between the M55, you see there is a yellow road?

A. Yes I do, yes.

J. Yes, say I am walking along that road?

A. Yes.

J. And I am making three calls as I walk along, but for whatever reason at 54 it is not picked up, it goes to 52, in relation

then if I was making one call and I started at 55, I kept talking in the vicinity of 54, but again there was a problem with

54 and then it is picked up by 52 and then again 53, picks me up when I am still on the phone on the same conversation.

But you would know it was one conversation would you?

A. It is routed back, yes its only just one CDR so it is from 55.

J. But if I make three different phone calls, that’s three different CDR’s so to speak?

A. That’s correct.

J. And insofar as there are three – if someone was looking at it afterwards trying to map my route?

A. Potentially it could be three locations, correct.

J. Yes and potentially it would be that I was going in a westerly and then in a south easterly direction?

A. In that instance, correct, yes.

J. Very good. Thank you.”

31. The defence say that this was not permissible, because the state of the evidence was such that the cell utilised could not be

established as having been the first cell interrogated by the caller’s phone, or as being necessarily close or proximate to the location

of the caller. Calls could be passed from cell to cell because of overloading, or calls might be redirected because a particular cell, or

indeed a number of cells, was (or were) out of action. Thus, the defence argued, in circumstances where it could not be established

that the cell actually utilised was the one which had first been interrogated, there could be no reliable deductions made as to where

the calling handset actually was at the time that the call was made.

32. In a number of other cases that have dealt with the admissibility of telephone evidence, different courts have had to consider

whether telephone records which the prosecution was seeking to introduce were to be appropriately regarded in the circumstances of

those cases as testimonial documentary evidence admissible as an exception to the hearsay rule through the provisions of the

Criminal Evidence Act 1992, or as real evidence. (See the case of The People (Director of Public Prosecutions) v. Colm Murphy [2005]

2 I.R. 125 and The People (Director of Public Prosecutions v. Brian Meehan [2006] 3 I.R. 468).

33. In this case, however, the prosecution made clear at all stages that they were seeking to adduce the telephone records as real

evidence, and indeed the defence took no real issue with that at the trial, accepting that the telephone records were generated by

an automated system with no human intervention.

34. However, the defence submitted that in this case, unlike in some of the earlier cases, the accuracy, reliability and probative value

of the telephone records had been called into question. In their arguments to the trial court, the defendants placed reliance on the

fact that the Court of Criminal Appeal in both Murphy and Meehan had referred to a case of R. v. Cochrane [1993] Crim. L.R. 48, and

indeed had done so in identical terms, commenting (at paras. 84 and 33 respectively):-

“Such authorities must now be read subject to the decision in R. v. Cochrane, in which it was held by the Court of Appeal

that before the judge can decide whether computer printouts are admissible, whether as real evidence or as hearsay, it is

necessary to call appropriate authoritative evidence to describe the function and operation of the computer.”

35. The respondents argued at trial that the court had not heard evidence from any witness to confirm that the computers which had

produced the records at issue were operating correctly and normally in March, 2005.

36. The trial judge took some time to consider the matter and used the facility provided by the Digital Audio Recording System (the

“DAR”) to listen again to some of the technical evidence that had been given, and she then ruled as follows:-

“. . . in any event, the court is dealing with an application on behalf of the two accused, challenging the admissibility of a

telephone record proposed on behalf of the prosecution in this case. The court has heard evidence of the request made in

relation to a number of telephone numbers, nine in total, from various telephone networks providing records relevant to

these numbers. The evidence proposed primarily comes from three witnesses, one from Meteor, one from O2 and its

related service company Vilacom. In particular these witnesses propose evidence in relation to cell site analysis on the

relevant network for particular dates in the year 2005. The evidence, in a general sense, will be relevant, as I understand

it, to the tracking of certain telephones as the phones moved through the city of Dublin and surrounding areas for the

relevant dates. The witnesses have clearly confirmed that the proposed evidence has been generated by the use of

computers and systems operated by the networks. There is no evidence that the proposed evidence involved human

intervention and no issue appears to have been raised in that regard. The challenge to this evidence is that, before the

court can accept such evidence as real evidence in the case. There must also be evidence that the system, which is

computerised, was in operation and appropriately functioning. The prosecution say that such evidence is to be found in

the proposed evidence called on the issue. The use of telephone records in this and other jurisdictions has been relied

upon increasingly in the last two decades. This is in keeping with the increased use by the public of such implements. This

increased usage has led to further networks and demands on those networks. In the decision of the Court of Criminal

Appeal in the case of the People (DPP) v. Colm Murphy [2005] 2 I.R. 125, that court considered the introduction of such

evidence in the trial against Mr. Murphy. The Court of Criminal Appeal considered a number of decisions from the UK in

confirming that information from computers, in the form of printouts or records was to be treated as a piece of real

evidence and confirming, from the case of R. v. Woods ‘the actual proof and relevance of which depended on the

evidence of others’. The Court of Criminal Appeal confirmed that, in the absence of any evidence that the machine or

computer was defective that the principle in relation to the introduction of such evidence also applies to the device itself

which gathered the information. Referring to the case of R. v. Spiby [1990/1991] Crim.Ap.Rept. at 186, the court

confirmed that:

‘Where information is recorded by mechanical means, without the intervention of the human mind, the record made

by the machine is admissible’.

The court went on to confirm that this is all subject to the decision in R. v. Cochrane [1994] CLR 48, which held that:

‘Before a judge can decide whether computer printouts are admissible, whether as real evidence or as hearsay, it is

necessary to call appropriate, authoritative evidence to describe the function and operation of the computer’.

In the following year the Court of Criminal Appeal in the case of DPP v. Brian Meehan [2006] 3 I.R. 468 also considered the

admissibility of mobile phone records during the course of that trial. Again the Court of Criminal Appeal stated at p. 480:

‘There can be no longer any debate as to whether a recording, which is produced mechanically, without human

intervention, is admissible in evidence. Such evidence is real evidence’.

This decision further confirmed the requirement in the decision of R. v. Cochrane that, before the judge can decide

whether computer printouts are admissible, whether as real evidence or as hearsay, it is necessary to call appropriate

evidence as to the function and operation of the computer.

In the current case, the court has heard evidence from two engineers and an enterprise architect. There is no doubt as

to their expertise to explain the function of the various cell sites which operate throughout the relevant networks and the

records arising therefrom. There is no issue on the fact that the records are generated in the ordinary course of business.

It is further clear that there is a knowledge as to how the system generates information when a phone call is made and

received. It is also clear, from the evidence of Fergal O'Toole and Douglas Shirran in particular, that along with the

information generated in their records adduced to be relied on, there are other events occurring where no such

information is either available or now available. In particular, there has been evidence in relation to the rerouting of calls

in certain events, where either a cell site is not operational or where it is busy, due to demand on the system in a given

area. Of particular concern in that regard is the fact that, on a given day, there may be, within the system, whether due

to maintenance reasons, weather or perhaps other technical reasons a part or part of the system which are non

operational. Thus this raises the issue in the mind of the court to be addressed in evidence required as a result of the

Cochrane decision. In other words, is there evidence before this Court as to the ‘authoritative evidence about the

operation of the relevant machines’? The telephone networks have grown considerably over the last few years. There

clearly must be some reality in the necessary evidence required for the purposes of court cases. I have reviewed in full

the evidence of the three relevant witnesses in this case and none of them could say, or proposed to say, that the

relevant networks were fully operational on the relevant dates. It seems to this Court to be within the scope of the

networks to have a witness available who can say that, on a given day, all cell sites were in functioning order or, if there

were sites out of operation on that day or dates. It is obvious that the sites recording data were in operation, but as to

the possibility of the rerouting of calls from one site to another, due to a site not being in operation has been confirmed

by both Mr. O'Toole and Mr. Shirran, it seems feasible that the prosecution should have available to it evidence confirming

that all sites were indeed in operation on the dates in question. There is also a concern raised by the issue of the

rerouting of calls where sites are busy and the extent of information that is available in the system but not included on

the call data records. Again, it seems to me that some evidence could be made available to deal with this issue, if not in a

specific sense, even in a general way that would assist the court and jury in assessing the information that is contained

in the data to be relied upon in the course of the trial. Again this evidence is also not available in this instance.

Taking all these matters into consideration, I find that while the proposed evidence is clearly real evidence in the way

confirmed by the Court of Criminal Appeal in the Murphy and Meehan cases, in the absence of appropriate authoritative

evidence to describe the function and operation of the system for the dates in question, I am not satisfied that, on the

evidence before the Court, that the records are admissible.”

37. In the view of the Court, the Circuit Court judge was influenced, and perhaps influenced to an undue extent, by the references to

the decision in R. v. Cochrane that were made in Murphy and Meehan. The Cochrane decision in turn was heavily influenced by an

English statute, s. 69 of the Police and Criminal Evidence Act 1984, which has since been repealed, but which at the time provided

that:-

“(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any

fact stated therein unless it is shown –

(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of

the computer;

(b) that at all material times the computer was operating properly, or if not, that any respect in which it was not

operating properly or was out of operation was not such as to affect the production of the document or the

accuracy of its contents . . .”

38. There has never been any equivalent to s. 69 in this jurisdiction. However, the repeal of s. 69 of the Police and Criminal Evidence

Act 1984 in the neighbouring jurisdiction would seem to have brought the law in Ireland and that in England and Wales into alignment.

Archbold, Criminal Pleading Evidence and Practice, 2010 Ed., (Sweet & Maxwell, London) at para. 9-14, states as follows:-

“Prior to the repeal of s. 69 . . . it was necessary to prove the reliability of the computer before any statement in a

document produced by a computer could be admitted in evidence . . . The repeal of s. 69 means that any issue pertaining

to the reliability of a computer will go to weight. In the absence of any evidence to raise the issue of reliability it would

seem that the maxim omnia praesumunter rite esse acta will apply.”

39. In this case there was nothing to lead to a conclusion that the computer system was not operating as it was intended to do, or

that there was anything unreliable about the data recorded. The height of the argument from the defence side was that, in light of

the possibility that calls could have been rerouted or redirected, conclusions drawn about the location from which the call was made

might not be reliable, or certainly could not be drawn with the confidence that might at first have seemed possible. However, even

taking the Cochrane statement at face value, and it was twice referred to with approval by the Court of Criminal Appeal, the trial

judge in her ruling went considerably further in appearing to require that there “must also be evidence that the system, which is

computerised, was in operation and appropriately functioning”.

40. Such an approach is not consistent with earlier Irish authorities in this area, nor indeed with the practice in England and Wales. In

R. v. Shephard [1993] A.C. 380, it was held that it will very rarely be necessary to call an expert to prove that a computer is reliable.

Shephard was a case decided at a time when s. 69 of the Police and Criminal Evidence Act 1984 was applicable. Nonetheless, the

evidence of a store detective in a shoplifting case that she had examined all the till rolls for the day in question, which were linked to

a central computer, and that they had contained no record of the unique product code for some of the goods found in the

defendant’s possession was found to be adequate. Lord Griffiths observed (at p. 387):-

“Computers vary immensely in their complexity and in the operations they perform. The burden of the evidence to

discharge the burden of showing that there has been no improper use of the computer and that it was operating properly

will inevitably vary from case to case. I suspect that it will very rarely be necessary to call an expert and that, in the

vast majority of cases, it will be possible to discharge the burden by calling a witness who is familiar with the operation of

the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.”

41. In this case a number of witnesses were called from Meteor and O2 who were familiar with what the computer was required to do,

and who were in a position to say that it was doing it properly, in the sense that it was recording details of the calls made. In this

case there was no doubt that the cells recorded as having been accessed in the course of certain calls were indeed accessed. The

most that can be said of the issues raised by the defence is that it has not been established that there were not unsuccessful

attempts to access one or more other cells. However, that, in the view of the Court, is quintessentially a matter that goes to weight

rather than admissibility. In that regard, it is highly significant that the prosecution was contending that the relevance of the

evidence was that phones could be seen moving from the general Raheny area in the north east of Dublin, through the city, and out

along to the general area in the Wicklow Mountains where the members of the Richardson family were restrained. The prosecution

interest was in establishing that particular phones moved in a particular direction. The prosecution was not seeking to establish the

precise location from which any particular call was made, but rather the interest was in the general direction of travel. The Court is

satisfied that the judge erred in excluding the evidence in controversy. Having regard to the outcome of earlier trials, the Court is also

satisfied that the evidence in question is compelling evidence within the meaning of the statute. The Court will hear counsel in

relation to what orders should follow and in particular will, as requested, hear arguments on behalf of the respondents as to whether

or not it is appropriate to direct a retrial.