R v Thomas Lewin

On 2 May 2025 at the Wolverhampton Crown Court before HHJ Meegan, the appellant, Thomas Lewin, was convicted on two counts of criminal damage. On the same date he was sentenced to a fine of £500 on count 1 with no separate sentence for count 2. He was ordered to pay a victim surcharge of £200, compensation in the sum of £2,000 and to contribute to the costs of the prosecution in the sum of £4,380. He was also made subject to a restraining order until 2 May 2030, whereby he must not contact nor attend any address of Stuart Brady (the complainant) on count 1.

The appellant appeals against his conviction by leave of the Single Judge on two grounds, namely that (i) the trial judge wrongly directed the jury on the issue of identification evidence and (ii) the trial judge failed to identify sufficiently the evidence that the appellant relied on in support of his alibi defence.

The material background facts are as follows. In 2018 Mr Brady rented an annex building from the appellant for approximately 3 months. On termination of the tenancy there had been a degree of animosity between the two men. In the early hours of Sunday 2024 April 2022, damage was caused to two vehicles belonging to Mr Brady and his partner, Sukhvir Kaur (the complainant on count 2), parked on the driveway outside their home address. An individual poured liquid on the vehicles causing paintwork damage to both vehicles. Neither Mr Bradley nor Ms Kaur saw the person who caused the damage and there were no other witnesses to the incident but part of the incident was captured on CCTV footage which covered the front of their address. The CCTV footage showed a man pull something out of his jacket pocket before pouring liquid over the roof of the first vehicle. The man then walked off the driveway for a few minutes before returning to pour liquid over the second vehicle.

Mr Brady viewed the CCTV footage and identified the appellant as the man who caused the damage. Police obtained further CCTV footage near the appellant's home address. This was said to show the appellant leaving his home address in a vehicle on the night of Saturday 23 April 2022 at 23.25 and returning at 0.23, on Sunday 24 April 2022.

In a police interview on 14 October 2022 the appellant denied that he was the man seen in the CCTV footage. He said that he had been told that Mr Brady had moved away from the area and that he did not know where he now lived. When asked where he was around midnight on 24 April 2022 the appellant replied that he did not know. He thought that he had been away at the time, possibly on the south coast on his way to France in his camper motorhome. He was shown the CCTV footage from his home address. He said that he did not know if the man seen leaving and returning had been him or not, but it was his driveway, and therefore he would assume that it had been him. He said that he did sometimes go out at night to the supermarket but also that one of his neighbours had access to his vehicle to keep the battery charged whilst he was away.

The prosecution case was that the appellant caused the damage to both vehicles. Mr Brady gave evidence that the CCTV footage covered the front of his address. He knew the appellant and recognised him as the man in the footage from the width of the face, the body shape, the walk and the fact that he was an older person.

The prosecution also relied on what was said to be distinctive clothing. A jacket with two fluorescent stripes worn by the man seen on the night of the incident on CCTV footage, carrying out the damage outside the complainant's property, and by the man seen on separate CCTV footage leaving and arriving at the appellant's house.

The defence was that although Mr Brady had known the appellant and should have been able to recognise him, he had been mistaken in his identification. The appellant had in fact been in North Wales at the time of the offence.

Ground 1 is whether the trial judge wrongly directed the jury on the issue of identification evidence in his summing-up and/or in response to a question from the jury.

When summing-up to the jury the trial judge provided written directions which he took the jury through orally, including directions on the issue of identification:

The judge warned the jury of the need for caution when considering this evidence and making comparisons between the footage and the defendant as set out in paragraph 15 of the written directions. He pointed out the risk of mistaken identification including a genuine and honest mistake:

The judge also warned the jury that the quality of the footage might affect the ability of the witness to identify the appellant and the ability of the jury to make comparison.

As set out in paragraphs 16, 17 and 18 of the written legal directions regarding identification evidence the judge told the jury as follows:

During their deliberations the jury wrote a note for the judge as follows:

The judge raised the jury note with counsel and discussed an appropriate response to the jury after consideration of the written directions and the Crown Court Compendium. The jury were given the following additional direction:

The ground of appeal is that the judge wrongly directed the jury that if they decided that the quality of the CCTV footage was not good enough for fair identification comparisons to be made, then Mr Brady's identification evidence might still be taken into account and could be capable of leading to a conviction.

In Attorney-General's Reference No 2 of 2002 [2002] EWCA Crim 2373, Rose LJ held that there were at least four circumstances in which, subject to a sufficient warning, the jury could be invited to conclude that the defendant committed the offence on the basis of a photographic image from the scene of the crime which is admitted in evidence. We note that in R v Ozger [2022] EWCA Crim 1238, the Court noted that the list is non-exhaustive. Those circumstances include: (a) where a CCTV image is sufficiently clear the jury can compare it with the defendant's appearance in court in front of the jury and (b) where a witness knows the defendant sufficiently well to recognise the defendant as the offender shown in a CCTV image, the witness can give evidence of this. Although in many cases the results are likely to be the same, these represent two separate exercises. Indeed, we consider that conflating these separate strands of evidence could lead to confirmation bias. The result of one exercise could, in an appropriate case, corroborate or undermine the result of another. But they remain distinct. The judge, with consent from counsel on both sides, recognised that the jury should be warned against conflating the exercise.

As a matter of principle, it was possible for the jury to form the view that the quality of the footage was not good enough to allow them safely to make their own comparison with the appellant but, notwithstanding their inability to identify the appellant from the footage, the jury might be satisfied, so as to be sure, based on the evidence of Mr Brady, who knew the appellant, had studied the footage with great care and who therefore might be in a better position to carry out a comparison that the appellant was the man in the footage. When considering the evidence of a witness such as Mr Brady, the jury were not required to ignore what, if anything, they could see on the CCTV. So in this case, for example, even if the quality of the CCTV overall was not sufficient for the jury to be sure on the basis of their own assessment that the man was the defendant, when considering the evidence of Mr Brady they could, if appropriate, rely upon evidence such as the distinctive clothing as seen in the CCTV as supporting Mr Brady's identification of the appellant as the man in both sets of CCTV footage.

We recognise that there may be cases in which the quality of the CCTV footage is so poor that it could not provide any adequate basis for a jury or a witness to identify a defendant. But in this case Mr Brady explained the factors that he considered allowed him to identify the appellant as the man in the CCTV footage. That was factual evidence that was properly left to the jury.

In this case, there was additional evidence that was capable of providing support for the identification of the appellant as the man in the CCTV footage. There was footage of a man wearing a similar distinctive jacket getting into the appellant's vehicle outside his house and driving away shortly before the incident and returning shortly afterwards. There was also the proximity of the properties allowing the vehicle that left the appellant's house to travel to the complainant's house at the time of the incident, and return as shown on the footage. The judge was careful to repeat paragraph 18 of his written directions in his oral summing-up and when answering the jury note. The jury could not have been in any doubt that they could only convict if they were sure of the identification of the appellant as the person on footage. For those reasons we do not consider that the jury directions were flawed so as to render the conviction unsafe.

Ground 2 is whether the trial judge failed to identify sufficiently the evidence that the appellant relied on in support of his alibi defence. In his summing-up the judge directed the jury as set out in paragraphs 19 and 20 of his written directions:

The judge reminded the jury of the appellant's interview with the police on 14 October 2022 and his account of where he was at the time of the incident. He referred to the absence of any attribution to the defendant's vehicle through automatic number plate recognition. The judge expressly reminded the jury of the defendant's Facebook memory showing a photograph of him at the coast, with his motorhome, in April 2022.

This was a very short trial and the appellant's evidence would have been fresh in the minds of the jury. In those circumstances, we consider that the judge's summing-up of the alibi evidence was suitably detailed and sufficient.

Turning to other grounds. The appellant, who has chosen to represent himself but has not attended court today despite being aware of this hearing, has sought leave in writing to appeal against his conviction on additional grounds. He makes a number of complaints against the conduct of his defence by his legal representatives but we refuse leave because he has failed to sign a waiver of privilege form and there is nothing of substance in the complaints for the reasons given by the Single Judge. He also makes a number of points regarding the strength or weakness of the evidence against him. But those matters were all properly left to the jury as adjudicators on the facts.

For the above reasons the appeal is dismissed.