Two men convicted in connection with receiving a stolen mobile phone on the basis of an app that photographs a person trying to access a phone and emails the phone’s owner in that regard, have brought legal challenges to their convictions.
Mr Justice Richard Humphreys granted leave to Feichin McDonagh SC, for both men, to bring judicial review proceedings in the High Court aimed at quashing their convictions in the District Court.
Counsel said the offence with which both men were charged was one contrary to Section 27 of Criminal Justice Theft and Fraud Offences Act 2001 and concerned a receiving charge in relation to a mobile phone.
One of the men was fined €150 while the other was fined €350, and they were respectively given a year and two years to pay. Mr Justice Humphreys refused to stay the District Court order requiring the fines be paid, but said, if they win their High Court case, they are entitled to recover the monies.
The case arose after a man reported to gardaí that, while in the Twisted Pepper nightclub in Dublin, he noticed his phone was missing. The man had an app on his phone, iCaughtU Pro, which emails the owner if a person tries to access the phone and also takes photos of that person.
The man had shown the email and photos to gardaí, which led to the arrest of both applicants.
Counsel said the District Court judge convicted the men after hearing evidence from the complainant, who had no expertise concerning the app, and from a garda about what was said to be on the phone app.
The garda had said he had identified a man and a co-accused from the photos taken by the app, but the District Court judge did not engage meaningfully with the cross-examination of the garda or with the issues raised, counsel said. The only evidence was what was said to be an electronic transmission from the phone, he added.
His clients’ case was the District Court judge failed to give reasons for rejecting the detailed submissions advanced on behalf of the men concerning reliance on such evidence. His side were also alleging prejudgment on the part of the District Court judge, counsel added.
Mr Justice Humphreys said he would grant leave for judicial review in both cases and he returned the matter to February.
