R v Thomas Lewin

In CCTV identification cases, the jury’s own comparison of footage with the defendant and identification by a witness familiar with the defendant are distinct exercises. They must not be conflated, since conflation may create confirmation bias. A jury may be unable safely to identify the defendant from the footage yet accept the evidence of a knowledgeable witness, provided it is sure of the identification. Features visible on the footage, including distinctive clothing, may be considered when evaluating that witness’s evidence. The adequacy of the footage is ordinarily a question for the jury. On alibi, the prosecution bears the burden of proving presence at the scene; a false alibi does not by itself establish guilt.

The appellant was convicted at Wolverhampton Crown Court on two counts of criminal damage and received a fine, compensation order, costs order and restraining order. The prosecution relied on CCTV footage of a man damaging two vehicles, the identification evidence of a complainant who knew the appellant, and further footage showing a similarly dressed man leaving and returning to the appellant’s home. The appellant denied being the man and relied on an alibi placing him in North Wales.

By leave of the Single Judge, he appealed on the grounds that the trial judge misdirected the jury on identification evidence and failed sufficiently to identify the evidence supporting the alibi.

Appeal dismissed.

1. The court held that CCTV identification may involve two separate exercises: the jury’s own comparison of the footage with the defendant, and identification by a witness who knows the defendant sufficiently well to recognise him in the footage. Attorney-General’s Reference No 2 of 2002 [2002] EWCA Crim 2373 identified circumstances in which identification from photographic material may properly be left to a jury. R v Ozger [2022] EWCA Crim 1238 confirmed that the list was non-exhaustive.
2. The two exercises must not be conflated, because doing so may produce confirmation bias. The result of one exercise may corroborate or undermine the other. A jury may conclude that the footage is insufficient for its own comparison while accepting the identification evidence of a witness who has studied the footage and knows the defendant. The jury may consider visible features, such as distinctive clothing, when assessing that witness’s evidence.
3. Although footage may in some cases be too poor to provide an adequate basis for identification by either the jury or a witness, the factors relied on by the complainant in this case were factual matters properly left to the jury. The directions, including the response to the jury’s question, clearly separated the two identification exercises and made clear that conviction required the jury to be sure of the appellant’s identification.
4. The alibi direction was sufficient. The judge correctly explained that the prosecution had to prove the appellant was at the scene, that he did not have to prove he was in North Wales, and that proof of a false alibi would not by itself establish guilt. The judge also reminded the jury of the appellant’s interview, the absence of automatic number plate recognition attribution to his vehicle, and his Facebook memory showing him at the coast with his motorhome.
5. Leave to appeal on further complaints about the conduct of the defence was refused because the appellant had not signed a waiver of privilege and the complaints lacked substance. Challenges to the strength of the evidence were matters for the jury.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2026] EWCA Crim 450.
• Wolverhampton Crown Court: Before HHJ Meegan on 2 May 2025, the appellant was convicted on two counts of criminal damage and sentenced to a fine on count 1, with compensation, costs and a restraining order.