Neutral Citation Number: [2009] EWCA Crim 1627
Case No: 2007/00559 D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Crown Court sitting at Birmingham
The Recorder of Birmingham, HHJ Saunders QC
20037868

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/07/2009

Before:

LORD JUSTICE HOOPER
MR JUSTICE LLOYD JONES
and
MR JUSTICE CRANSTON
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Between:

	Shamus Iqbal	Appellant	
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	The Queen	Respondent	

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Miss Louise Blackwell QC and Ms Alison Gerry (instructed by Abbey Solicitors) for the Appellant
Mr Rex Tedd QC and Mr Timothy Harrington (instructed by CPS Birmingham) for the Respondent

Hearing dates: 4, 5 and 6 February 2009, 6 March 2009 and 24 July 2009
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Judgment

LORD JUSTICE HOOPER: 
1.	On 14th April 2005 in the Crown Court at Birmingham (The Recorder of Birmingham, H.H.J.Saunders QC) after a re-trial the appellant was convicted of attempted murder (count 1) and possessing a firearm with intent to endanger life (count 3).  He appeals with the leave of Grigson J. It is submitted that fresh evidence concerning the cell site evidence about which the jury heard at the trial makes the conviction unsafe. 
2.	At the conclusion of the hearing over three long days in February we adjourned to give counsel an opportunity to prepare written final submissions. We then had a further oral hearing on 24 July and on that day we announced that the appeal would be dismissed. We now give our reasons for that conclusion. 
3.	We should say at the outset how grateful we are to counsel for the quality of their oral and written presentations.
4.	It is only necessary to set out the facts briefly. On Saturday 28th June 2003 at about mid day, a group of about 7 men, dressed in dark clothing and wearing balaclavas, armed with weapons which included a shotgun, hand gun,  machete and knife,  over a prolonged period attacked and shot at the victim,  Mohammed Javed aged 21, in the vicinity of Witton road, Aston, Birmingham. The victim miraculously survived the shooting. He spent 14 days in intensive care and he remained in hospital until 15th July. The attack took place between 12.24 and 12.26, during which time there was no cell phone traffic between the attackers. 
5.	It was the prosecution case that the attack was set against a background of rivalry between two groups. Javed was said to be a member of the Topside Crew: the accused were said to be members of the Lamb Gang. It was alleged that the attack was carried out by members of the Lamb Gang using three cars and that the appellant was one of the participants. The appellant was identified by a witness as being the driver of one of the cars, the Almera, later to be abandoned and destroyed by fire. After the events the first four named on the indictment, including the appellant, went into hiding in the Gainsborough Hotel, Kidderminster, assisted by the co-defendant Zafran Rashid, who also arranged accommodation for them at the hotel.
6.	Whilst in hiding they were alleged to have used a television service which broadcast text messages, to communicate with their family and friends and to boast about what they had done. 
7.	Naveed Mohammed (the appellant’s uncle), Qadeem Mohammed and Naseem Mohammed (brothers and the appellant’s cousins) were convicted on the same counts as the appellant. Zafran Rashid, a solicitor’s clerk, was convicted of assisting an offender and attempting to pervert the course of justice. Zafar Iqbal was convicted of attempting to pervert the course of justice.
8.	The only issue which we have to resolve is whether the jury’s finding that the appellant was at the scene of the attempted murder is safe. The fresh evidence upon which the appellant relies comes largely from a Mr Campbell who holds himself out as an expert in cell site evidence and who gave evidence before us. That evidence is said to undermine the evidence upon which the jury came to the conclusion that the appellant was at the scene of the attempted murder. The issue which we have to resolve is whether the fresh evidence, if capable of belief, may afford a ground for allowing the appeal. It will not do if the conviction is safe. 
9.	At our invitation, the appellant gave evidence before us and told us, contrary to what he had said at the trial, that at the time of the attack he was in a gym in Digbeth not far from the centre of Birmingham. He gave a similar account of his whereabouts in his police interview (albeit that there were significant differences). If he was or may have been in the gym, then he would not be guilty of the offences. We invited the appellant to give evidence, having been told that the account which he gave at the trial of being in the vicinity of the attack was not the true account and that he had abandoned the alibi of being in the gym when faced with a report from an expert instructed by the defence for the trial, a Mr Clues. His report confirmed the accuracy of the prosecution cell site evidence which flatly contradicted his account of being in the gym.  Mr Clues was not called in evidence at the trial. In evidence to us the appellant explained that he felt that he had to abandon his true defence, namely that he was in the gym, given what the expert was saying. We shall have to consider whether he was abandoning a true alibi or abandoning a false alibi, the falsity of which had been proved. The appellant relies on the evidence of Mr Campbell the effect of which is that the prosecution cell site evidence was so unreliable that it could not contradict the appellant’s account of being in the gym.
10.	In addition to inviting the appellant to give evidence, we made it a requirement of his continuing with the appeal that he waived privilege. It was very important to see his solicitor’s files to see why he had changed his story and what story or stories he had given to his legal advisers.   
11.	We made it clear at an early stage to Miss Blackwell QC, who appears for the appellant on the appeal but did not appear for him at the trial, that it was our view that if we were sure that that the appellant was not telling the truth when he told us that he was at the gym at the time of the attack, then we should dismiss the appeal.  Notwithstanding that Miss Blackwell accepted that at the time, she submitted on 24 July that we should consider all the evidence as to the safety of the conviction even if we were sure that the appellant was lying. We take the view that the appeal must be dismissed if we are sure that the appellant is not telling the truth about being in the gym. Whilst at trial the fact that a jury finds that an alibi is false will not normally without more lead to a conviction, the situation now is very different. The appellant’s case at trial (unsupported by evidence from him) was that he was in the vicinity of the killing although not involved. He now says (as he had said to the police) that he was in the gym at the time of the killing and that he presented a false case at trial.  The conviction on the facts of this case cannot be unsafe if we are sure that he is lying when he says that he was at the gym. 
12.	We have no doubt at all that he is lying when he says that he was at the gym and we now give our reasons for that conclusion.
13.	The cell site evidence relied upon by the prosecution shows that the appellant’s phone, whilst in the vicinity of the gym the night before the attack and on the morning of the attack was not in the vicinity of the gym at or around the time of the attack. The appellant accepts that he was in the vicinity of the gym the night before, having spent time with his girlfriend who happens to live near the gym. The appellant accepted, with some prevarication, that he was in possession of the phone at and around the time of the killing and thereafter and was using the phone. (He had to accept that the phone was his because of evidence that he had telephoned his trial solicitor on the day of the attack). It follows that if the cell site evidence is accurate, then he was not in the gym.
14.	The appellant submits, relying on the evidence of Mr Campbell, that the method used to extract the cell phone data from the T-Mobile original data records, themselves accepted to be accurate, is so unsatisfactory that no reliance can be placed upon the extracted material. Mr Campbell points to the first attempt to extract the data when the records of the outgoing calls from the appellant’s phone were clearly wrong in that they placed the appellant in an area where, it is agreed, he could not have been. That was recognised by the police who called for a second extraction.  
15.	Unfortunately the email showing that the first extraction was faulty was not disclosed and, so Mr Campbell says, if the defence expert, Mr Clues, had known about it he would have been able to attack the accuracy of the later extraction. Counsel for the appellant also attacks “the respondent’s failure not to disclose the inbuilt problem with the programme to extract that data from the T-mobile computer”. The material which was made available to the defence would have disclosed the problem, as would also the undisclosed email.  If the email had been disclosed there could have been no complaint about any further non-disclosure.
16.	The method of extracting the data from the original data required the operator on the screen manually to extract some of the data produced by the request in order to give the police the information which was being requested. That manual operation carried with it, so Mr Campbell argues, the risk of errors creeping in and that is demonstrated by the first extraction which was clearly wrong in so far as outgoing calls were concerned.  He cannot say that the data relied on at trial was unreliable only that it may be. Miss Blackwell puts it this way:
The data was held by T-mobile on their Oscar database, and in order to extract any data a call data record query (CDRQ) must be made. The system deployed by T-mobile to make such queries was programmed to access two types of data, not merely one. It extracted both the incoming data and the outgoing data for each telephone call. 
Thus for every single telephone call requested, data was produced for the mobile making the call and the mobile receiving the call. The reason that this is so important is that this error requires the T-mobile operator to “manipulate” the data to remove the unwanted information about the mobile receiving the call. I use the word “manipulate” in the same sense as Mr Campbell, namely that the T-mobile operator must manually examine and remove certain parts of it by asking the computer to perform further tasks. 
With this knowledge it is possible to understand the nature of the concerns in the reliability of the data. What Mr Campbell cannot say and does not say is that there is material upon which it is possible to state that the Appellant’s alibi is demonstrably true. What Mr Campbell can and does say is that there are grounds for not accepting that T-mobile’s data can be relied upon, to base an expert opinion. And therefore this should have been brought to the attention of the jury for them to decide the factual issue of the reliability of the T-mobile data.
17.	It is further submitted on behalf of the appellant that some of the post attack cell site data involving the appellant’s phone must be unreliable in that it is physically impossible in the time available to move from the area in which he is said to have made or received a call to the area in which he is said to have made or received a further call. That shows, so the appellant submits, that the data had been incorrectly extracted and therefore cast doubt on the data which, on the face of it, showed that the appellant was not in the gym.
18.	We start by examining the evidence of the appellant that he was in the gym at the time of the shooting.  
19.	The appellant accepted that he had the phone (called the lime -811 phone at the trial) with him at all material times, that he had sent incriminating text messages after the shooting and that members of his family planned to beat up the victim and actually carried out the attack. These admissions are consistent with the convictions of the other defendants, and the guilt of the absent brother Shamrez Nabi. One of the text messages read: “The Ferrari Crew [a name given to the appellant’s group]  frm Aston Shamus Nav Butch Kib and Sheg U lot runnin the area frm Southal boyz wid U al D way”. According to the respondent the appellant was using the nicknames of those involved in the shooting and was demonstrating (so the jury could infer)  their control of the area by shooting Mohammed Javed, and because of this were now “running the area”.
20.	In his prepared statement handed to the police during a largely no comment interview on 30 July (just over a month after the shooting) he said:
As far as I’m concerned I was not involved in the incident in any way. I don’t know any person that was involved in the incident  ... I have alibi witnesses that confirm that I was Flex and Fitness gym between 11.45 am and 2.00 pm. The following persons can confirm my presence at the gym, SAL who is the owner of the gym, Bret, works at the gym, a member called Mickey who was training at the gym. I think the gym has CCTV cameras. This is also evidence of my presence at the gym. I was accompanied by my brother Shamrez Nabi ...
I am surprised and shocked that I am a suspect together with my extended family. (Italics added)
21.	The italicized passages are now known not to be true. As to his alleged surprise and shock he told us that he knew before the attack that his family planned to attack the victim, and knew immediately afterwards that they had done so, having received that information on his phone. The appellant now says that his brother was not with him.  He falsely claimed that “I don’t know any other person that was involved in the incident” pretending that his family were wrongly accused, and that the true culprits were “West Indian Caribbeans”. 
22.	His solicitor’s files show that on 7th April 2004 (i.e. shortly before the abortive trial before Hunt J. was due to start), he repeated the “Digbeth gym” account, giving further details of the exercises he did (contrast his oral evidence, in which he says he did not exercise). He claimed to have gone from the gym to his cousin’s house in Small Heath (identified in subsequent documents as Aubrey Road, Small Heath). The “Small Heath visit” account has now been abandoned.
23.	On 7th April 2004, the appellant’s defence statement repeated the account given in police interview
24.	In a Proof of Evidence, signed by the Appellant and dated 21st May 2004, he stated that:-
(a) he slept the previous night at home [52 Brantley Road].
	(b) he went from home to the gym, with his brother [Shamrez], leaving home at about 11:15 and arriving at 11:40. There “we went through our training programme”.
	(c) after training, while still at the gym having a protein drink, two “Asian lads” arrived, talking about the shooting and saying that “Fat Jav” had been shot.  
(d) the Appellant and Shamrez left the gym, and went to 23 Aubrey Road, Small Heath, the home of his cousin Safraz Mohammed, where they spent 1½ -2 hrs, leaving at about 4 p.m.
	(e) they then went home [52 Brantley Road] and spent about an hour there 
	(f) the Appellant [but not Shamrez] then went by taxi from 52 Brantley Road to Kidderminster, leaving at about 6:15 p.m., and reaching the hotel at about 7 p.m.
25.	Paragraphs (a), (e) and the reference to Brantley Road in (f) are demonstrably false, being contradicted by surveillance evidence of his home. The description given in (c) of going to Small Heath is untrue. The reference in (f) to the taxi is untrue
26.	The alibi was supported by witness statements in the solicitor’s files from:-
	(a)	Safraz Mohammed
	(b)	Ali Akbar, the proprietor of Midland Radio Cars, purporting to give details of the taxi “pick up”, and producing a work sheet on which the relevant entry was misplaced in time order
	(c)	Mohammed Saleem Raza, the proprietor of the gym, supporting the Appellant’s account of his presence and training there, as well as the arrival of the Asian youths with news of the shooting.  
27.	None of those witnesses gave evidence before us. The work sheet in (b) was demonstrably a forgery. It is difficult to believe that the appellant was unaware of the forgery, albeit he denies knowledge of it.
28.	In another version of the alibi found on the solicitor’s files the Appellant gave instructions that he was “at gym from 12 - 2.  At 2ish heard of incident and didn‘t want to return to Aston.  Went to snooker club … left snooker club at 4-4:15 and returned home”. The reference to the snooker club (also supported by a statement from a witness) is believed by the respondent to relate to the Snow Hill Snooker Club, Fazeley Street, no great distance from the Digbeth gym. The assertion that he had stayed at the gym to 14.00 hours has now been abandoned, as well as the trip to the snooker club and the return home. He now says that he learnt about the shooting very shortly after it had occurred.
29.	When it became clear that the cell site evidence did not support the gym alibi, the files show that the appellant changed his story on a number of occasions.
30.	In one draft the appellant stated that (i) he had spent the night of 27th June 2003, i.e. the night before the offence, at a flat in the Digbeth area with “Sonia”, and (ii) at about 11 a.m. the next day, he left the flat and went to the Flex and Fitness Gym “near the Digbeth Coach Station” and (iii) at around midday he travelled along Lichfield Road from the Digbeth area in a Toyota Carina “travelling to my house”. He stated further that, by telephone, he arranged to meet Zafran Rashid at the Gainsborough Hotel, Kidderminster. “I then drove from Aston along Birchfield Road, onto Walsall Road and then onto the motorway to Kidderminster”.  This account put the defendant in Aston at 12:36, i.e. within no more than 6 minutes after the shooting. In the files there was another version of the route taken.
31.	In another typewritten draft the appellant was saying Zafran “told me to meet him near his house, (b) I then drove from the Aston area to Handsworth and (c) at 12:45 I called Zafran as he was not near/outside his home address.  He told me to go round the corner…”.  This passage was later crossed out. We return to this later. The cell site evidence shows that there was a call to Rashid at 12.45.47, lasting 11 seconds.
32.	In evidence before us he said that he had spent the night with a girlfriend in the Digbeth area. That is corroborated by the cell site evidence. At about 11.30 the next morning he went to the gym. At the gym he received a call from Naveed asking him to come and join him and others to beat up Javed (the victim of the attempted murder). At 12.27 he received a call from his brother telling him that Javed had been attacked. Thinking that his brother was involved he phoned Zafran Rashid right away. That call was at 12.31. On Zafran’s instructions he went to the hotel in Kidderminster, leaving the gym almost immediately after that call. The account of being in the gym for two and a half hours was abandoned. He told us that he had changed his account having been told by his lawyers that the cell site evidence showed that he was not at the gym. Although at one point he suggested that he had been bullied by counsel to change his account, he did not maintain that position. 
33.	We have to say that even if there was no other evidence, we are convinced that the appellant did not tell us the truth when he said that he was at the gym.  Looking at the many different accounts which he gave from his original police interview to the account he gave us, the discrepancies are such that the final account is not credible. If he was at the gym then we do not accept that he would have given up his account of being at the gym so easily.  He would have strongly protested to his lawyers that there must be an error in the cell site evidence.  We know that much of what he has said about his movements is false.
34.	We turn to the cell site evidence. During the period when the appellant says now that he was at the gym, that is 11.30 to about 12.32, there were about 17 calls, the majority of which were to or from persons involved in the attack. (If he had maintained his original account of being in the gym to 14.00 then there were another 15 calls between 12.32 and 13.00). The cell site evidence relating to these calls did not place him even once within the coverage of the antennae covering the gym.  The only calls which showed that he was in this area were earlier during the night and in the morning when he was staying with his girlfriend near the gym. There were some 8 of those. Furthermore each one of the incoming and outgoing calls is matched with the data from the other phone in so far as the number of that phone is concerned, the start time of the calls and the duration of the calls. 
35.	We turn to the extraction of the data from the T mobile records. Mr Tedd QC writes:
The first sets of data for lime -811 were extracted and provided by T-Mobile on 29th November 2003.  The resultant material is at AB5/Tab 4.  The important points as to the process of extraction are:-
	(a)	the T-Mobile database remains unaltered [this is unchallenged].
	(b)	the incoming and outgoing data is extracted separately.
	(c)	both incoming and outgoing data initially include material which is not required for the purpose of response to the police request (i.e. essentially data relating to the other mobile telephones with which lime -811 was connected while making/receiving each call).
	(d)	the surplus data is “trimmed off” by manual keyboard operation. 
20.	The keyboard process in respect of the outgoing data was incorrectly carried out.  In consequence, the outgoing data [AB5/Tab 4/pages 7-9] provided to the police on 29th November 2003 was flawed. The evidence of Tracey Wilmott [in the Court of Appeal] is that the flaws resulted from the keyboard process, although it is not possible to tell precisely what error was made.  
21.	The important points are that:-
	(a)	the fact that the outgoing data was flawed was obvious to any experienced eye, and swiftly spotted by Ms Grange, the police intelligence analyst [see email dated 3rd December 2003, whose text is in Final Grounds of Appeal, paragraph 31 [AB1/Tab 1].
	(b)	the flawed outgoing data shows a series of different IMEI numbers [i.e. handsets] whereas the incoming data shows only one [-950].
	(c)	various entries purportedly show the mobile telephone as connected successively with cell sites in widely differing locations [i.e. essentially sometimes in Birmingham, and sometimes at Malvern House/Coniston House, Kidderminster].
	(d)	it appears obvious that the incorrect outgoing data contains some material which relates to the other connecting mobile telephones.
	(e)	[not mentioned in oral evidence, but apparent upon analysis] the outgoing data is inconsistent with the incoming data [see e.g. outgoing call 14:15:51, lasting 40 seconds, and incoming call 14:16:09 - i.e. apparently starting before the outgoing call had finished].
	(f)	the incoming data does not exhibit the same peculiar features.  
22.	On 5th December 2003, in response to the police request to check the flawed data,  a second set of both incoming and outgoing  data for lime -811 was provided [AB5/Tab 6].  The important points are:-
	(a)	this data was obtained by two extractions [i.e. incoming and outgoing data extracted separately] made separately from, and subsequent to, the original extractions.
	(b)	the second incoming data was consistent with the original incoming data.
	(c)	the second outgoing data differed markedly from the original outgoing data.  The second set had only one IMEI [handset] number throughout.  The errors in the original set did not appear in the second set.
	(d)	the first 8 entries showed the use of central Birmingham cell sites, both in the midnight/2:00 a.m. period and in the 10:00 a.m. - 11:30 a.m. period - i.e. consistent with the Appellant staying overnight with a girlfriend at an address in/near Digbeth.
23.	Billing records for lime -811 were prepared, again on a separate occasion, and by a separate extraction.  Billing records (a) relate only to outgoing calls and (b) contain only information relevant to financial charging, and thus not any information relating to cell sites.  
24. 	Subject to those limitations, billing records provide a further check as to the second outgoing call data provided on 5th December 2003.  The important points are that:-
	(a)	billing records have a very high degree of accuracy.
	(b)	Mr Clues audited [i.e. checked] the billing records against the second outgoing call data.  See his report at AB4/Tab 4/pages 8-9 and Respondent’s Skeleton Argument [3] at AB1/Tab 3/paras 75-79.
	(c)	Mr Clues concluded that, save for “explainable exceptions”, the data in the CDRs [i.e. the second set of outgoing call data] “matched that in the billing records” - see para 3.1.4 of Mr Clues’ report.
	(d)	Mr Campbell, in his second and third reports, both compiled after he had seen Mr Clues’ report, simply ignores Mr Clues’ analysis and conclusions.
	(e)	in contrast, Mr Clues, who had been instructed specifically to consider the “raw data” for lime -811, tested that data and by inference concluded that it was accurate.
25.	The fourth extraction of data was made by Tracey Wilmott on 17th December 2003, when she extracted the data which forms Exhibits TW1 and TW2 [AB5/Tabs 9-10].  Again, the incoming and outgoing data was extracted by two separate processes.  Both incoming and outgoing data match the second sets extracted on 5th December 2003, and used by Mr Uglow as the basis for his analysis.
36.	Miss Blackwell points out that the use of the expression “billing records” is wrong because the relevant phones were pay as you go. That criticism, even if well placed, is irrelevant. She also seems to suggest that there are no records from which this information could have come. We do not follow that. 
37.	Miss Blackwell submits that there is no way of knowing whether the later extractions were inaccurate. We do not agree. The original T-Mobile data base remains unaltered.  There has never been a reason to doubt the validity of the incoming data other than because of the risk of an error during the manual sorting process. The risk of that error having occurred is virtually eliminated by repeated independent sortings producing the same result. None of the seven incoming calls between 12.00 and 12.31 put the appellant in the area of the gym. As far as the outgoing data is concerned after one false extraction, all the other independent extractions produced the same result and thus the risk of error is virtually eliminated. The so-called billing records do no more than add a further check, albeit a limited one. 
38.	We reject the attack on the accuracy of the cell-site evidence in so far as it shows that the appellant was not at the gym. To the extent that there was a failure to disclose, it cannot affect the safety of the conviction.  
39.	We turn finally to the later calls. We asked Miss Blackwell to choose the best sequence of calls to make her point. 
40.	Before we look at those calls we should examine call 16 separately. That call was an incoming call from Zafran Rashid 12.32.31, following the outgoing call to him a minute before. The jury knew that the relevant antenna was on the Johnson Hotel to the West of the M5. The evidence before the jury as to the strength of the signal enabled counsel for the appellant to argue to the jury that it would have been impossible in the time available to get to the area covered by that antenna after the shooting. Notwithstanding that submission, the jury convicted the appellant, thus refusing to accept that submission. They were right not to accept it. We now know that the survey work carried out Mr Clues before the trial showed that signals from that antenna could be picked up by a phone over a large area including the M5 and M6 junction and along the M6 to the East of that junction.  It is ironic that at trial the appellant’s case at trial was that he was in the area covered by the Howard Johnson Hotel antenna and could not have been at the scene of the killing, whereas  he is now saying that he was in or near the gym leaving for Kidderminster and the cell cite data is inaccurate in that it is not putting him in the gym area. 
41.	It is the respondent’s case that the appellant went into an area to the East of the M5 where Zafran Rashi lives, an area which we called for convenience the golf course area. Support for that can be found in the passage in a draft proof to which we referred (paragraph 31 above). Miss Blackwell asks us to treat that passage with caution because we do not know its precise date and because it was later crossed out. In our view it is of importance- it is inconceivable that the solicitors would have written that down if it had not come from their client. The time of the call referred in the passage is 12.45.37 and was picked up by the Simoco Tower 0º azimuth, outside the range of that antenna according to Mr Campbell.  
42.	We take the first of the pair of calls upon which Miss Blackwell relies. 
43.	She wrote:
The ... pair of relevant calls are call 16 ..., starting at 12.32.31 using the Howard Johnson north cell and the call at 12.34.27 using Simoco Tower north (which call can be seen at App Bundle 7 Tab 16 page 16/2 as call 17, and is not shown on any of Mr Uglow’s exhibits PMU 30 to 33). The distance to be travelled to access coverage to this cell is 3.8 miles, the time available is 116 seconds and thus the average speed necessary to travel this distance in the time available is 118 miles per hour.
Again, it must be remembered that this is during the day and is in a built up area of Birmingham.
44.	This is only right if the survey conducted by Mr Campbell accurately plotted the total relevant coverage and if there has been no change since the time of the attack. Mr Campbell’s survey was conducted in December 2005. We learnt on the last day of the hearing that there has been a wholesale change of channel use, some time after January 2005, but before Mr Campbell’s survey in December 2005. When channels are changed, according to Mr Campbell:
Timeliness.  Network operators can and do change their networks frequently by adding new cells, changing power levels and frequencies, and/or by changing or re-allocating cell identities. Network Operations and maintenance centres maintain a continuous watch on traffic conditions on their network and can change the performance of any station on command, in response either to faults or unusual traffic. It follows that it is more likely than not that a network will have changed between the time records were made and the time when experts are in the field checking and interpreting the data”.
45.	It is of course right that T-Mobile may not have changed all or some of the power levels. We just do not know.
46.	The first call was, as we have just seen, an incoming call from Zafran Rashid, whom the appellant had called a minute before and five minutes after the shooting. The second call was at 12.34.27 to the appellant’s brother. That call was picked up by the Simoco Tower 0º azimuth, the same antenna that picked up the 12.45 call said, as we have seen,  in one draft proof to have been made near the home of Zafran Rashid. 
47.	 In addition to the complications identified in paragraph 44 and 45 above, we have the additional complication that the Simoco Tower is a very high one and likely to cover a significant area (notwithstanding what Mr Campbell says), that none of the experts have surveyed the golf course area near Zafran Rashid’s house to see whether a phone could connect to the Simoco Tower antenna and that we have no reliable evidence from the appellant as to where he was at this time. Miss Blackwell tells us that none of the other phones used by associates used the Simoco Tower antenna. The relevance of that must depend upon precisely where they were.
48.	Miss Blackwell took us to the second pair:
The next pair of relevant calls start with call 17 as above, at 12.34.27 using Simoco Tower north cell, and the call at 12.35.47 [to the person described during the trial as the Chief] using Pia Rayat House north cell (which call can be seen at App Bundle 7 Tab 16 page 16/2 call 20 and is not plotted by Mr Uglow in his exhibits PMU 30 to 33). The distance to be travelled to access coverage to this second cell is 4.8 miles, the time available to travel this distance is 80 seconds and thus the average speed necessary to cover this distance in the time available is 216 miles per hour.
For this pair of calls it has now become impossible for this journey to have been made. This in itself calls into question the reliability of the data supplied by T-mobile.
49.	Given the uncertainties around call 17, this example takes us no further. The account of the 12:45 call explains why the cell site analysis is consistent with his presence within easy range of Zafran Rashid’s home. The use of the Pia Rayat House north cell is consistent with being in the area of the golf course.
50.	The third pair takes us no further.  In Miss Blackwell’s words:
The next pair of relevant calls starts at 12.36.42 [call no 23 to Zafran Rashid] using Pia Rayat House north cell (which call can be seen at App Bundle 7 Tab 16 page 16/2 call 23 and is not plotted by Mr Uglow in his exhibits PMU 30 to 33) and the call at 12.38.54 [incoming call number 24 from an unknown person], using Simoco Tower east cell [azimuth 120º] (which call can be seen at App Bundle 7 Tab 16 page 16/2 call 24 and is not plotted by Mr Uglow in his exhibits PMU 30 to 33). The distance to be travelled to access coverage for this second cell is 4.8 miles and the time available to cover this distance is 132 seconds. Thus the average speed necessary to travel this distance in the time available is 131 miles per hour. This it is submitted in extremely unlikely given the time of day and the area in question.
51.	In our view none of the data relating to these calls undermines the accuracy of the data which shows that the appellant was not at the gym.
52.	For these reasons the appeal is dismissed.