Vodafone analysed evidence in case where it was alleged victim

A man left on bail for more than seven years has hit out at Vodafone's role in his court case as alleged victim and examiner of vital computer evidence.

Daniel Mahony told The Register that Vodafone not only said it was the victim of a fraud perpetuated in part by his company, but also examined his computers on the instruction of Surrey Police.

Mahony spent seven and a half years on court bail, having been charged in 2010 with fraud and operating an unlicensed commercial multi-user gateway (COMUG), contrary to the Wireless Telegraphy Act.

The fraud case hinged on stolen credit cards from Southeast Asia. Prosecutors alleged Mahony was part of a conspiracy to launder money taken from these cards by using them to top up SIMs used in the firm's GSM gateways. Mahony was cleared of this charge after a retrial but the GSM gateway prosecution continued as a separate case.

The Crown Prosecution Service alleged Mahony was operating without a licence, whereas all GSM gateway operators maintained that no separate licence was needed because the devices simply used mobile operators' SIM cards to forward calls made to them. This prosecution was discontinued in September this year.

"Vodafone were there when we were first arrested," he told El Reg. "They went into our offices and homes, they dismantled everything, all the computers, they went to our homes and took paperwork and computers."

He said seized devices were then examined by Vodafone, after which they "gave the evidence that they found to the police".

Mahony alleged a key email chain could not be found on his computers after Vodafone examined them and said a co-defendant eventually found it on his own devices by chance. "His counsel came up to me with a sheet of papers and said, you might be interested in these. And the papers contained the emails I claimed to have sent."

The emails in question were sent by Mahony to one of his suppliers chasing up an invoice. He told El Reg that their absence in his first trial let prosecutors allege that he tried to cover up evidence that he knew some of his suppliers were using dodgy credit cards.

"You've got the situation where the computer that I sent an email from – be it at work or at home, and CC'd to colleagues – [the email] can't be found on any of my computers as a sent item, even though we had emails sync'd across all our devices, and it can't be found in received items on their computers," said Mahony. "But they do appear on this other defendant's computer who had nothing to do with our company – except he was one of the suppliers to our suppliers."

A Vodafone spokesman told us: "Surrey Police brought the case against Mr Mahony – not Vodafone. It was Surrey Police and the Crown Prosecution Service who decided that the case against Mr Mahony was in the public interest. We acted solely on the instruction of Surrey Police throughout the case, as we are obliged to do so by law. Surrey Police directed us to conduct the digital forensic examinations of the items that they had seized. The police kept the original exhibits and the master copy of these items at all times; we only ever examined copies under the direct instruction of Surrey Police. We strongly deny any implied allegation that Vodafone altered or tampered with any evidence: doing so would be a criminal offence."

A spokesperson from Surrey Police said: "This was a lengthy and thorough investigation spanning seven years, throughout which the Force has followed the judicial process. The investigation was carried out in accordance with the law as it was at the time, with the Crown Prosecution Service satisfied the matter was suitable for prosecution, applying their policies and procedures until they revised their decision earlier in September.

"Outsourcing to external forensic examiners or technical experts is not unusual in cases where there are large quantities of equipment or data to examine. Advice was sought on this matter, specifically in relation to Vodafone, from the CPS who raised no objections. A strict protocol and non-disclosure agreement was put in place between the examiners at Vodafone and the Force, agreed by the CPS, to ensure that the forensic examination of computers was transparent, which was robustly managed. Vodafone was given supervised access to the devices, while they remained in the possession of Surrey Police. The access they were given was to image the computers, the originals remained in the possession of Surrey Police.

"Complaints from Mr Mahony, relating to the investigation, are being looked into now the criminal case has concluded."

Mahony previously told El Reg that it had taken "a long time to get answers" from the force. Since the prosecution was dropped in September, he has written to Surrey Police's professional standards department with a detailed series of complaints about its handling of the case, which the force's Economic Crime Unit code-named Operation Callahan.

An article in The Times today also highlighted Vodafone's involvement in the case.

Even the judge asked WTF was going on here

His Honour Judge Michael Grieve QC, the judge in the years-long case, repeatedly questioned whether the prosecution was in the public interest. At a hearing earlier this year, the judge said in court:

"The lawfulness of GSM gateways as operated by [Mahony] were a matter of genuine debate at all relevant times. At trial it was accepted to be a grey area and the defendants may have genuinely and reasonably believed their use was lawful."

The judge added, damningly: "It therefore seems likely that these defendants would not have been prosecuted for this offence but for their alleged involvement in fraud... for [Mahony] in particular, it might plausibly be said to be arbitrary that he be singled out for prosecution for an offence committed by many others with seeming impunity."

The case was adjourned at that hearing, pending Ofcom's public consultation on lifting the GSM gateway ban.

No other prosecution has ever been brought for operating a GSM gateway. The devices, which allowed cheap overseas calls to be made by exploiting SIM card airtime deals, were banned by Ofcom more than a decade ago, following pressure from the Home Office. They were re-legalised by Ofcom earlier this year, following other litigation (Recall Support Services v Secretary of State for Culture, Media and Sport). Then security minister Ben Wallace promptly banned them again by ministerial decree, under the grounds of national security. The business case for their use has since disappeared as overseas call rates become ever cheaper.

Sources claimed to El Reg that Mahony was some kind of Al Capone figure and that the GSM gateway charge was similar to the famous tax evasion prosecution which brought down the Mafia boss.

"We did get hoodwinked by these suppliers who were supplying vouchers for dodgy payments. We didn't know that. My business partner did get convicted at the first trial," Mahony said. He sarcastically dismissed the idea that he was an organised crime kingpin or had profited from the credit card fraud, however. "I'm the Mafia don who lost his house, lost his car, lost everything!" ®