EWJ 60 April 2025 web - Journal - Page 57
sions of the operative filming something, but only filming the
last few seconds of what was obviously a much longer episode,
often in a way that makes it impossible to identify the person
being filmed and without any explanation as to why the longer
episode had not been filmed. These omissions reinforce concerns about the incomplete nature of this evidence as a whole.
Overall the effect of cross-examination of the Claimant
for 3 and a half days was for the Judge to find her an
honest witness.
Cross-examination of other witnesses
One example of cross-examination of other witnesses
was a carer was cross-examined as to whether she had
travelled on the same plane as the Claimant to Jamaica
and she readily accepted this was a mistake in the witness statement, they had gone to Jamaica at the same
time but on different planes. The Judge describes
how: “.. in closing the Defendant submitted that none of
Anna Crowley’s evidence can be relied upon because, the Defendant submitted, she had lied in her witness statement about
being present on a flight to Jamaica with the Claimant and
providing care to the Claimant during that flight. The Defendant submitted that not only can her evidence not be relied
upon, but she and the Claimant must have colluded in this lie
and this is a further example of fundamental dishonesty on the
part of the Claimant.”
iv) It appears as though, on occasions, the surveillance was
being conducted from a significant distance and that, on occasions, the surveillance operative moved to a different location during the period of surveillance, with the obvious risk
that the surveillance was not continuous.
v) Whilst there is some footage of cars parked outside the
Claimant’s home, it is haphazard and often appears to be incidental. There was no attempt on any of the days to take a
comprehensive inventory of the vehicles parked in the road at
various times, such as would have been valuable in identifying whose vehicles were present at what time.
vi) The period of surveillance often starts either close to, or
well after, the start of the carer’s day and ends either well
before, or close to the end of the carer’s day, with the inevitable
risk that handovers have occurred outside the period of
surveillance.”
The Judge’s conclusion was:
“Taking the evidence in the round, I do not find that Anna
Crowley lied about the trip to Jamaica in her witness statement. I find that the statement was inaccurate and she failed
to read it carefully before signing it, but I do not find that she
was dishonest. On the contrary, and somewhat ironically, I
find that the way in which the inaccuracy in paragraph 19
came to light provided compelling evidence of her honesty.”
Overall the Judge emphasised: “that if something is
shown on the footage, that is determinative of it happening.
However I do not accept that the absence of something on the
footage is determinative of it not happening.”
The Surveillance Evidence
The judge described how the use of surveillance
evidence in this case was unusual
Social Media Evidence
The Defendant alleged that the Claimant was seen
dancing in the rain whilst on holiday with friends. In
respect of this social media evidence the Judge explained that;
“Surveillance evidence is typically adduced to demonstrate that
a Claimant has greater physical capabilities than he or she has
asserted. That is not this case. In this case the Claimant says
that she needs and has 24-hour care. The surveillance evidence is adduced in support of the Defendant’s allegation that
the Claimant has been dishonest about the care that she receives and she has not been receiving 24 hour care. The Defendant says that the surveillance evidence shows that carers
are not coming and going from the Claimant’s home address.
In that sense, it seeks to prove a negative. That being so, there
are a number of very unsatisfactory aspects to the surveillance
evidence: –
“There was a thumbnail of a video that accompanied the Facebook post. The Claimant said that she was not sure that the
person in the thumbnail was her. The video was not in evidence. The Claimant was asked to look for the video during
the trial and said that she could not find it. The Defendant
made much of her failure to produce the video, accusing her
of dishonesty in cross-examination and again in written closing submissions. That being so, it was very surprising to be told
in the course of oral closing submissions that the Defendant’s
solicitors had in fact had the video in their possession during
the trial. They had not previously mentioned this to counsel or
the court, and it has not been disclosed or relied upon, despite
the fact that the Defendant bears the burden of proof in relation to fundamental dishonesty. In all these circumstances, I
conclude that this post does not support an allegation of dishonesty.”
i) The surveillance footage itself is not continuous throughout
each period of surveillance such that it would, as a standalone piece of evidence, demonstrate who did and did not come
and go at the Claimant’s home. The surveillance footage that
we do have, and I am told that it is the entirety of the footage
that was taken, is minimal.
Lessons for both Claimants and Defendants
Against the background of an increasing number of
cases where an issue of fundamental dishonesty is
raised this case illustrates the importance of the
following points:
ii) There is no evidence from the surveillance operatives to the
effect that they kept the Claimant’s house under constant
surveillance during their shift and captured everything that
happened and that if it is not on the footage, it did not
happen.
For Claimants:
1. Claimants need to be advised that allegations of
fundamental dishonesty are not unusual even for
seriously injured Claimants.
iii) Although there is a proforma statement from each of the operatives stating “I obtained video evidence, where possible, of
the events that occurred”, this is not supported by the evidence.
By way of example, there are events recorded in the surveillance logs that the operative purports to have seen, but has not
filmed. By way of further example, there are numerous occa-
EXPERT WITNESS JOURNAL
l Claimants need to be advised that social media
accounts are frequently scrutinised by Defendants.
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