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

When the surveillance evidence was initially served on the Claimant, no surveillance logs were provided from a surveillance operative called Marian Trofin. When the unedited footage was requested, no surveillance evidence from Mr Trofin and no surveillance log pertaining to him was disclosed. Ms Begum’s 10 July 2024 witness statement does not include Mr Trofin’s name in the list of surveillance operatives. However, following the Claimant’s Solicitor’s careful analysis of the original edited footage, he detected a voice that was not heard on any of the remaining footage, thus raising concern about undisclosed footage. A further request was sent to the Defendant for all footage to be disclosed. A surveillance log, witness statement (dated 28 June 2024) and unedited footage from Mr Trofin was then served. To compound issues that may cause the Claimant suspicion, when Mr Trofin’s footage was disclosed, it showed that TSG had two sets of footage with an identical time stamp, but which had the Claimant in two different places at the same time; this can obviously not be correct. Mr Wittering suggests that the time stamp on Mr Trofin’s camera was incorrect “by around 2 minutes”. He also states that he has reviewed all of the other footage and “it appears the timing was accurate apart from Mr Trofin on 28 June 2024. If it was not, it would have become immediately clear as on occasion there is simultaneous footage of the same incident and more commonly sequential footage from different Surveillance Operatives”.

The Claimant alleges that TSG/the Defendant has deliberately suppressed Mr Trofin’s evidence to avoid scrutiny of the issues with the timing and the effect that would have on undermining the quality of their systems and the inferences that could be drawn as to the unreliability of the evidence. Ms Ashworth variously described this as a “deliberate cover up” for which there could not be an “innocent explanation”, “dishonest” and that the evidence was “deliberately manipulated”. The Claimant also argues that the timings of that day were clearly significant as they were pleaded within the first draft Amended Defence.

Ms Begum is again seemingly responsible for the issue. Ms Begum’s witness statement deals with this issue in part. She explains that the surveillance pack that she prepared did not include the logs for Mr Trofin, despite some of this footage being included in the edited footage for this period. Ms Begum provides no explanation, let alone a good explanation, for how this occurred, albeit she accepts responsibility for the errors and states that they were unintentional. She goes on to explain that the error made with the evidence pack led to Mr Trofin’s footage subsequently being excluded from the unedited footage supplied because the person responsible for putting the unedited footage together (in this case Georgina Ridler) uses the information within the evidence pack to determine which operative’s footage should be included in the unedited footage. The Court has not been furnished with evidence from Ms Ridler, albeit has had an explanation provided by Mr Mills and Mr Wittering.

It is clearly unsatisfactory that TSG has provided surveillance evidence from two different operatives showing the Claimant in different places at the same time. That again raises concern about how robust TSG’s systems are. However, despite the Claimant’s Solicitor’s assertion to the contrary, I cannot see that the precise timings of events were critical on this day, such that it is essential that the precise timestamp on the recording must be accurate. Nevertheless, insofar as the Defendant relies on timings, caution will need to be applied to the evidence given the proven inaccuracy of at least one of the timestamps on at least one of the days of surveillance. That is something that the trial judge can consider when weighing up the value of the surveillance evidence and what it is said to show. That does not excuse the inaccuracy, but it does reduce some of the prejudice. Furthermore, Mr Trofin’s evidence does not seem to take matters materially further forward.

It is also entirely unsatisfactory that such footage was not disclosed as part of the unedited footage when requested by the Claimant. However, an explanation has been provided by the TSG witnesses about the initial mistakes with Mr Trofin’s surveillance log and how those initial mistakes led to the non-disclosure. The fact that some of Mr Trofin’s footage was disclosed within the original edited footage rather militates against the Claimant’s contention that the footage has been deliberately suppressed.