PROVING THINGS 239: THE IMPORTANCE OF BEING ABLE TO PROVE THE DATE THAT VIDEOS WERE TAKEN

We are looking at one particular factual issue that arose in Wye Valley NHS Trust v Murphy [2024] EWHC 1912 (KB). The applicant Trust was unable to prove the date that various videos were taken. Consequently they were unable to rely on the videos to establish dishonesty on the part of the defendant.  In that case the Trust was saved because two of the videos showed post-operative scarring). However the point here is to show the importance of the videos themselves having the date and time on them, a party never knows when a video operative will simply “disappear.”

“Without evidence of the dates on which the videos were taken, even those two videos which are found to show those scars cannot reliably be said to prove that Mr Murphy knowingly misled the medical experts, unless the videos can be dated. As Mr Bradley put it, in the absence of knowing the date, it is difficult to use the video footage as an evidential basis to compare Mr Murphy’s reported function as against his actual function at the time of the medical evidence.”

THE CASE

The applicant Trust brought committal proceedings against the defendant. The defendant had originally brought a personal injury action against the Trust which had been dismissed and a finding of fundamental dishonesty made.

THE VIDEO EVIDENCE

The Trust relied on a number of video recordings of the defendant taken whilst he was lifting objects.  The Trust’s main problem, however, was the person who took the videos could not be traced.  There was no date on the recordings and the Trust was unable to prove (for the vast majority of the videos) when they were taken and that the established dishonesty on the part of the defendant.

THE JUDGMENT ON THE VIDEO EVIDENCE

1. 1. The Trust’s contention that Mr Murphy’s statements as to the lack of strength in his left arm were false, and that he knew them to be false when he made them, is primarily founded upon video evidence provided by Mr Oseman and now exhibited to the affidavit of Mr Hansen.

1. 1. There are a substantial number of such videos. The common theme is that they appear to show Mr Murphy lifting heavy weights with either both arms or his left arm both in a gym setting and in what appears to be his back garden. On behalf of Mr Murphy, Mr Bradley makes some important points about the reliability of this evidence, as the basis for proof beyond reasonable doubt of Mr Murphy having falsely and deliberately misled the medical experts about the strength or weakness of his left arm since his injury and operation.

1. 1. None of the videos are dated. Out of the 33 videos which appear in the trial bundle, only two are said by the Trust to show evidence of Mr Murphy’s post-operative scarring on his left arm. Without evidence of the dates on which the videos were taken, even those two videos which are found to show those scars cannot reliably be said to prove that Mr Murphy knowingly misled the medical experts, unless the videos can be dated. As Mr Bradley put it, in the absence of knowing the date, it is difficult to use the video footage as an evidential basis to compare Mr Murphy’s reported function as against his actual function at the time of the medical evidence.

1. 1. There is some force in these arguments. In particular, I would find it very difficult to accept undated video evidence of Mr Murphy lifting heavy weights, without it being possible to detect the post-operative scars on his left arm, as capable of reaching the requisite standard of proof. There would almost inevitably be a residue of reasonable doubt as to whether, in each case, the video had been shot prior to the events of late March 2017.

1. Conversely, however, if the Trust is able to point to video evidence of Mr Murphy lifting heavy weights using his left arm in which the post operative scars are clearly visible, such evidence will be capable of supporting a finding to the requisite standard of proof, particularly if it can be shown that the video footage in question was shot prior to at least one of Mr Murphy’s statements about the loss of strength in his left arm. That is the corollary to Counsel’s submission.

1. 1. I return to the unchallenged evidence of Mr Limb. In [12c] of his affirmation, Mr Limb attests to the fact that 41 videos of Mr Murphy exercising have been passed to him, showing Mr Murphy performing numerous lifts with heavy gym equipment. Mr Limb states that the videos are not dated. He further states that in a number of the videos the scarring on Mr Murphy’s lateral left elbow is clearly visible.

1. 1. During the hearing, I was asked to view videos 8 and 27.

1. 1. In video 8, Mr Murphy is seen repeatedly lifting a weighted bar with both arms over a period of some 20 seconds. The location appears to be a private garden. The posture in which Mr Murphy is performing the lift is plainly one which depends upon significant strength in the biceps of both arms of the lifter. Mr Murphy’s post-operative scarring is clearly visible on his left arm. The video footage can thus be confidently dated to no earlier than 29 June 2017 (the date of Mr Murphy’s third and final operation). I was informed by Counsel that the website showed video 8 to have been uploaded onto YouTube on 17 August 2020. The video footage shown in video 8 must therefore have been shot prior to Mr Murphy’s interview with Mr Limb on 22 August 2020.

1. 1. In video 27, Mr Murphy is seen lifting and repeatedly swinging back and forth with both arms between his legs a kettle bell with “20KG” printed upon it over a period of some 40 seconds. The location appears to be a private kitchen. The posture in which Mr Murphy is performing the lift and swinging the kettle bell is plainly one which depends upon significant strength in the biceps of both arms of the lifter. Mr Murphy’s post-operative scarring is clearly visible on his left arm. The video footage can thus be confidently dated to no earlier than 29 June 2017 (the date of Mr Murphy’s third and final operation). I was informed by Counsel that the website showed video 27 to have been uploaded onto YouTube on 13 September 2020. The video footage shown in video 27 may therefore have been shot prior to Mr Murphy’s interview with Mr Limb on 22 August 2020; but must have been shot within no more than some 3 weeks after that interview.

1. 1. The Trust is, therefore, able to point to video footage of Mr Murphy lifting heavy weights using his left arm in which the post operative scars are clearly visible. Both videos 8 and 27 provide such footage. Video 8 must have been filmed on a date no later than 17 August 2020, the date on which it was uploaded to YouTube. Five days later, Mr Murphy told Mr Limb that he had experienced and continued to experience such a loss of strength in his left arm that he could no longer lift anything heavier than an empty kettle with his left hand. Video 27 must have been filmed on a date no later than 13 September 2020, the date on which it was uploaded to YouTube. Although that date comes some three weeks after Mr Murphy made that statement to Mr Limb, the fact that some three weeks later Mr Murphy was able to lift and to swing a 20 kilogram weight with both arms for a sustained period of 40 seconds calls for explanation. Mr Murphy has offered none.

1. In the light of the evidence provided by videos 8 and 27, I am satisfied to the criminal standard that Mr Murphy’s statement to Mr Limb on 22 August 2020, that he continued to have poor grip strength and that he could lift nothing heavier than the weight of an empty kettle with his left hand, was false. The video footage in videos 8 and 27 proves beyond any reasonable doubt that at the time when Mr Murphy made that statement to Mr Limb, he was experiencing no significant weakness in the strength of his left arm and his ability to lift with that arm. I am satisfied to the criminal standard that when Mr Murphy made that statement to Mr Limb, he did so deliberately, knowing that it was false and without any honest belief in its truth.