King's / Queen's Bench Division of the High Court

KB-2023-000278 - [2025] EWHC 2536 (KB)

Fecha: 09-Oct-2025

Retention of SD cards

67.

The Claimant’s complaint here is that TSG have wiped the data from the SD cards used within the cameras utilised by the surveillance operatives who took the original footage. That prevents, the Claimant asserts, an independent expert examining those SD cards to ascertain whether all footage has been provided to the Claimant.

68.

The witness statements of Mr Mills and Mr Hull describe the system that TSG utilises, in that operatives upload footage to an online server within a few days of the surveillance assignment using a secure encryption method. That footage is then downloaded onto TSG’s servers by the TSG case handler assigned to the case, which should mean there is an unedited copy of the surveillance that remains unchanged from the SD cards that is then on TSG’s servers. Mr Mills states that these recordings will be numbered so that one can see from the metadata when each was uploaded to the system and downloaded onto the server. The timestamp includes both the time and date that the file was uploaded. Mr Mills states that the footage on the recordings saved on the TSG server is exactly the same as what was on the surveillance operative’s SD card. A separate copy is then used for editing purposes. Mr Mills states that TSG follows the Information Commissioner’s Office CCTV Code of Practice in relation to maintaining the integrity of the footage and TSG believes that keeping it on their secure servers is the best way to do this. Mr Mills sets out within his statement when the footage was uploaded to the TSG system and server for each period of surveillance. He then confirms that:

“The copy of the unedited surveillance footage uploaded by the Surveillance Operatives from their SD cards onto the TSG system remains unedited on the TSG servers. The case handlers then make a copy of that original uploaded version to enable them to carry out the editing…
I have since gone back to check the system, the upload dates align. I can also see on the server if the original uploaded document was altered, and confirm, there are no entries to show that the original unedited uploaded document has been altered. The footage is also numbered sequentially so if any footage was removed from the server it would be clear as the numbers would no longer follow. I confirm I have checked and there is no out of sequence numbering since it was originally uploaded.”

Mr Wittering gives similar reassurance within his own witness statement.

69.

As Ms Ashworth points out, however, TSG’s system is far from infallible, as some footage was in fact uploaded footage over a week after it had been obtained, thus undermining TSG’s contentions.

70.

I further note the decision in Noble v Owens [2011] EWHC 534 (QB), to which I was referred, where Field J concluded that the unavailability of the original footage on the SD card(s) used was not a bar to the defendant relying on the surveillance evidence and, in that case, the procedure adopted of transferring the footage to DVDs was adopted because SD cards were considered an “unstable medium compared with DVDs”.

71.

It seems to me that the system TSG had in place, if it operated properly, was an appropriate one, as it ensured that footage was transferred and backed up securely; I have no evidence to suggest the contrary.

72.

The nub of the concern here is that the Claimant, understandably given the findings I have made above, has concern that not all footage that was obtained of her has been disclosed. Ms Ashworth goes as far as alleging dishonest manipulation of evidence. However, three points arise:

I have already outlined above that there are inherent limitations with surveillance evidence and a need to understand that surveillance evidence is only evidence of what it shows. The absence of surveillance does not evidence a negative.

ii)

There will always be concern in cases where surveillance has been obtained as to whether there was possibly more footage obtained or that more footage could or should have been obtained, irrespective of the system of storage and retention. The fact that SD cards have been wiped does not alter that concern. To put matters another way, even if the SD cards were available and, say, 10 were provided to the Claimant so that the Claimant could have them forensically examined, there would likely still be concern on the part of the Claimant that there were more SD cards that had not been provided. Equally, if TSG or the Defendant wanted to dishonestly (and entirely improperly) withhold evidence that would be helpful to the Claimant, it could simply have destroyed an SD card or denied the existence of the relevant SD card. It would present an insurmountable hurdle for defendants to definitively prove that no other footage exists as that would require a defendant to prove a negative. I do accept the proposition, however, that in most cases the conduct of those obtaining surveillance, or relying upon it, may not be questioned like it has been in this case. The issue in this case is that there has been poor conduct on the part of TSG, which creates an unusual situation where the Court must be more careful about accepting the normal starting point that those entrusted with such work have behaved properly and put evidence before the court that is entirely truthful.

iii)

There is no evidence before the Court that, had the SD cards been available, the Claimant would have been able to carry out any further forensic investigations than could now be carried out by analysing TSG’s servers or storage systems.

73.

For the above reasons, in my judgment, the wiping of the raw data from the SD cards was neither wrong nor improper and, subject to being satisfied that TSG/the Defendant has not deliberately withheld (or manipulated) evidence from the Court, I find that this strand of the Claimant’s concerns takes her argument no further forward.