Rare appeal by prosecution over judge’s phone acquittal

Last November, the woman, who cannot be named for legal reasons, denied intending to pervert the course of justice by removing a mobile phone the police were searching for from her home and taking it to another property.

Judge Graeme McKerrell found her not guilty on the grounds that while the woman had taken the phone in the footwell of her car to another house, she had not known it was there until she arrived.

So he felt the charge that the phone had been knowingly taken to another property was not borne out.

She had then gone to the police station where she denied knowing where the phone was, but later told the police where to find it.

It was about an hour from when she arrived at the other property to when she told police where the phone was.

In the appeal to the Royal Court, Advocate Rory Calderwood argued that the woman should have disclosed the location of the phone when asked by police and that her defence – that she was unwell, tired and confused – was implausible.

He added that the woman had been acquitted despite the evidence, not because of it.

Judge Russell Finch said that the prosecution could have amended the charge during the trial.

But Advocate Calderwood said the charge was correct, as the phone had been knowingly carried from the car on the driveway into the house.

‘Courts should not entertain hair-splitting arguments,’ he said.

But Advocate Peter Ferbrache, representing the woman, said the judge was right to acquit his client.

‘Going “to” somewhere and “into” somewhere are different things,’ he said.

He highlighted that there had been a gap of several days in the original trial when the prosecution had ample time to change the charge if it had wanted.

He also pointed out that to pervert the course of justice there had to be intent, which he denied existed in this case.

The decision will be made in due course.