Joseph Jacombs [2019] EWCA Crim 1158
Summary
In Joseph Ramon Jacombs [2019] EWCA Crim 1158 the Court of Appeal (Criminal Division) refused the applicant’s renewed application for leave to appeal against his conviction for an act outraging public decency.
On 19 April 2018 at Worcester Crown Court following a retrial, Mr Jacombs was convicted by a 10:2 majority of committing an act outraging public decency, the jury at his first trial having been discharged after failing to agree. He was sentenced to a community order with unpaid work and a rehabilitation activity requirement, both of which he had since completed. He sought leave to appeal his conviction and to adduce fresh evidence, having been refused by Davis LJ sitting as a single judge.
On 9 December 2016 at approximately 4.30 pm a woman boarded a bus in Birmingham with her three-year-old daughter and sat on the lower deck at the back in a rear-facing seat with her daughter by the window. The prosecution case was that at approximately 5 o’clock in the afternoon Mr Jacombs, a police officer, drove alongside the bus whilst masturbating at the wheel with his trousers around his knees. He was the only person in the car. The woman looked into the car and saw what was happening when a light, which appeared to be a telephone screen on the driver’s door, flashed. She observed the incident for about ten seconds before the traffic moved. She noted the registration number C88 JOE and reported the incident to police on 13 December 2016. A PNC check confirmed that Mr Jacombs had owned the car since February 2012 and was the only male driver named on the insurance. When arrested, his mobile phone was seized and examined. It was an agreed fact at trial that the phone contained a video recording of a man, not Mr Jacombs, driving alongside a bus and masturbating whilst a woman on the bus looked into the car.
Mr Jacombs gave evidence denying the allegations. His case was that he was driving his car in the vicinity on the date in question but could not say precisely where his vehicle was at the relevant time. His long-term partner, Susan Fallon, was in the car alongside him. He was not aware of the video on his phone and had never seen it. He had made no comment in interview on the advice of his solicitor because he had been in a state of shock. Miss Fallon gave evidence confirming they had gone out for dinner in his car that evening, nothing unusual had happened on the journey, and no masturbation took place. She had owned Mr Jacombs’ mobile phone before she met him, had never lent it to anyone else, and had never seen or downloaded the video.
Mr Jacombs sought to adduce fresh evidence consisting of his analysis of the prosecution evidence disc, which he said showed his phone accessing the Internet using his home Wi-Fi at 5.04 pm and 5.12 pm, demonstrating he was at home rather than on the road when the woman saw someone masturbating. He also sought to rely on evidence that the complainant was known to him and his ex-wife, having taught their daughter some years before. Additionally, Mr Jacombs contended that there had been a police failure to secure evidence from the complainant’s phone of the note she said she made of the number plate, and that police failed to check CCTV or APNR which would have shown his car was not on the road at the material time. He submitted that the summing-up was biased in favour of the Crown and that trial counsel had omitted to put pertinent material before the jury and failed to challenge misleading prosecution information regarding the location of the video found on his phone, which he said was in the video cache where it was unavailable to be viewed. Lastly, Mr Jacombs complained of a lack of continuity regarding the phone after it was seized by police.
The respondent opposed the application and, following a waiver of privilege, the court received a response from trial counsel to the criticisms made of him. Davis LJ, as single judge, had concluded that the grounds, whether taken singly or cumulatively, were untenable. He held that the proposed new evidence led nowhere, as whether the complainant knew Mr Jacombs or his family was immaterial, and when asked she said she had no recollection of meeting them. The point on continuity of evidence was hopeless. Sufficient material regarding Wi-Fi connections had been properly disclosed before trial, and Mr Jacombs’ attempts to expand on that material led nowhere in his favour; indeed trial counsel had confirmed that an informed tactical decision, for good reason and agreed with Mr Jacombs before trial, had been taken not to adduce further evidence. The single judge saw nothing unfair or unbalanced in the summing-up. There was ample evidence that Mr Jacombs had been in his silver Audi car, of which the complainant took the registration number, at the relevant time, together with the very striking factor of the video showing a man in a car masturbating towards a bus, found on Mr Jacombs’ mobile phone. Trial counsel had provided a complete answer to the criticisms made of him. The police could hardly be strongly criticised for not obtaining CCTV footage of the area when Mr Jacombs had initially accepted that he was driving in the vicinity of the incident in his Audi. The single judge considered all the numerous points raised and found none remotely arguable, describing the application as entirely devoid of merit.
The full court, constituted by Mrs Justice May and the Recorder of Northampton (His Honour Judge Mayo) sitting as a judge of the Court of Appeal Criminal Division, agreed entirely with the single judge’s reasoning and refused both the renewed application for permission to appeal and the application to adduce fresh evidence. The court considered whether to make an adverse costs order but, taking account of Mr Jacombs’ submissions and the fact that he had been representing himself, declined to make any such order.
In short, the Court of Appeal refused leave to appeal, holding that the proposed fresh evidence was immaterial and that there was ample evidence before the jury to support the conviction, with none of the grounds of appeal being remotely arguable.
On 19 April 2018 at Worcester Crown Court following a retrial, Mr Jacombs was convicted by a 10:2 majority of committing an act outraging public decency, the jury at his first trial having been discharged after failing to agree. He was sentenced to a community order with unpaid work and a rehabilitation activity requirement, both of which he had since completed. He sought leave to appeal his conviction and to adduce fresh evidence, having been refused by Davis LJ sitting as a single judge.
On 9 December 2016 at approximately 4.30 pm a woman boarded a bus in Birmingham with her three-year-old daughter and sat on the lower deck at the back in a rear-facing seat with her daughter by the window. The prosecution case was that at approximately 5 o’clock in the afternoon Mr Jacombs, a police officer, drove alongside the bus whilst masturbating at the wheel with his trousers around his knees. He was the only person in the car. The woman looked into the car and saw what was happening when a light, which appeared to be a telephone screen on the driver’s door, flashed. She observed the incident for about ten seconds before the traffic moved. She noted the registration number C88 JOE and reported the incident to police on 13 December 2016. A PNC check confirmed that Mr Jacombs had owned the car since February 2012 and was the only male driver named on the insurance. When arrested, his mobile phone was seized and examined. It was an agreed fact at trial that the phone contained a video recording of a man, not Mr Jacombs, driving alongside a bus and masturbating whilst a woman on the bus looked into the car.
Mr Jacombs gave evidence denying the allegations. His case was that he was driving his car in the vicinity on the date in question but could not say precisely where his vehicle was at the relevant time. His long-term partner, Susan Fallon, was in the car alongside him. He was not aware of the video on his phone and had never seen it. He had made no comment in interview on the advice of his solicitor because he had been in a state of shock. Miss Fallon gave evidence confirming they had gone out for dinner in his car that evening, nothing unusual had happened on the journey, and no masturbation took place. She had owned Mr Jacombs’ mobile phone before she met him, had never lent it to anyone else, and had never seen or downloaded the video.
Mr Jacombs sought to adduce fresh evidence consisting of his analysis of the prosecution evidence disc, which he said showed his phone accessing the Internet using his home Wi-Fi at 5.04 pm and 5.12 pm, demonstrating he was at home rather than on the road when the woman saw someone masturbating. He also sought to rely on evidence that the complainant was known to him and his ex-wife, having taught their daughter some years before. Additionally, Mr Jacombs contended that there had been a police failure to secure evidence from the complainant’s phone of the note she said she made of the number plate, and that police failed to check CCTV or APNR which would have shown his car was not on the road at the material time. He submitted that the summing-up was biased in favour of the Crown and that trial counsel had omitted to put pertinent material before the jury and failed to challenge misleading prosecution information regarding the location of the video found on his phone, which he said was in the video cache where it was unavailable to be viewed. Lastly, Mr Jacombs complained of a lack of continuity regarding the phone after it was seized by police.
The respondent opposed the application and, following a waiver of privilege, the court received a response from trial counsel to the criticisms made of him. Davis LJ, as single judge, had concluded that the grounds, whether taken singly or cumulatively, were untenable. He held that the proposed new evidence led nowhere, as whether the complainant knew Mr Jacombs or his family was immaterial, and when asked she said she had no recollection of meeting them. The point on continuity of evidence was hopeless. Sufficient material regarding Wi-Fi connections had been properly disclosed before trial, and Mr Jacombs’ attempts to expand on that material led nowhere in his favour; indeed trial counsel had confirmed that an informed tactical decision, for good reason and agreed with Mr Jacombs before trial, had been taken not to adduce further evidence. The single judge saw nothing unfair or unbalanced in the summing-up. There was ample evidence that Mr Jacombs had been in his silver Audi car, of which the complainant took the registration number, at the relevant time, together with the very striking factor of the video showing a man in a car masturbating towards a bus, found on Mr Jacombs’ mobile phone. Trial counsel had provided a complete answer to the criticisms made of him. The police could hardly be strongly criticised for not obtaining CCTV footage of the area when Mr Jacombs had initially accepted that he was driving in the vicinity of the incident in his Audi. The single judge considered all the numerous points raised and found none remotely arguable, describing the application as entirely devoid of merit.
The full court, constituted by Mrs Justice May and the Recorder of Northampton (His Honour Judge Mayo) sitting as a judge of the Court of Appeal Criminal Division, agreed entirely with the single judge’s reasoning and refused both the renewed application for permission to appeal and the application to adduce fresh evidence. The court considered whether to make an adverse costs order but, taking account of Mr Jacombs’ submissions and the fact that he had been representing himself, declined to make any such order.
In short, the Court of Appeal refused leave to appeal, holding that the proposed fresh evidence was immaterial and that there was ample evidence before the jury to support the conviction, with none of the grounds of appeal being remotely arguable.
The applicant was convicted at a retrial of outraging public decency and was sentenced to a community order which has been completed. He was a police officer who was seen by a lady on a bus masturbating at the wheel of his car. He sought to introduce fresh evidence that analysis of the prosecution evidence disc showed his phone was accessing the home Wi-Fi at the time, so he was at home not on the road and also that the complainant was known to him and his ex-wife. He also said that there was a police failure to secure evidence from the
complainant’s phone of the car registration, and they failed to check CCTV or ANPR to show his car was not on the road.
Held: the so-called proposed new evidence leads nowhere. There was ample evidence before the jury that the applicant had been in his car at the relevant time, there was also the very striking factor of the video on his phone showing a man (not the applicant) driving alongside a bus and masturbating whilst a woman on the bus looked into the car. The renewed application was refused.