R v Britzman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 28 October 1982 |
| Judgment citation (vLex) | [1982] EWCA Crim J1028-1 |
| Docket Number | No. 5394/B/81 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 October 1982 |
[1982] EWCA Crim J1028-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Mr. Justice Michael Davies
and
Mr. Justice Bush
No. 5394/B/81
No. 5395/B/81
MR. N. INGRAM appeared on behalf of the Appellant Britzman.
MR. A. MUNDAY appeared on behalf of the Appellant Hall.
MR. T. DOCKING appeared on behalf of the Crown.
On 6th November 1981 at the Crown Court at Croydon, after a trial before Mr. Recorder Titheridge, Q.C., these appellants, Frederick John Britzman and Henry Hall, were convicted of burglary and each was sentenced to four years' imprisonment. The single Judge gave them leave to appeal against their convictions and we have given them leave to appeal against their sentences.
On 29th May 1980 two men, posing as Water Board employees, persuaded a Mrs. Mayell, then aged 88, to allow them to enter her house on a council estate at Putney in order to inspect her water system, giving as their excuse for doing so that there was reason to believe the supply to be contaminated. One of them, followed by Mrs. Mayell, went into the kitchen and turned on the taps. The other went into another room and broke open and damaged a writing bureau which was locked.
Mrs. Mayell discovered this shortly after the two men had left. Nothing was missing. Mrs. Mayell at once telephoned the police and gave them descriptions of both men. A police officer in a motor car was at once sent to search the area and about fifteen minutes after the two men had left Mrs. Mayell's house he stopped and arrested the two appellants within the limits of the council estate. Both fitted the descriptions given by Mrs. Mayell. It was discovered later that Hall was wearing a wig. On 1st June 1980 they were both put on an identification parade but Mrs. Mayell did not pick them out. At the trial it was accepted by the prosecution that without the evidence of what had happened after arrest there would have not have been enough to justify a conviction of either appellant.
The prosecution's case was that shortly after arrest on 29th May both appellants were interviewed separately by Detective Constable Self. Both denied guilt. Britzman said: "If you think you can prove it, then I'll talk to you". Hall said: "You fucking prove something and I'll have it son".
On 30th May they were both separately interviewed by Detective Inspector Whyte and Detective Constable Andrews. Britzman refused to answer any questions. Hall said: "I won't admit anything until the time is right". On 1st June Detective Inspector Whyte, accompanied this time by Detective Constable Boal, had a long interview with Britzman which both officers said they had recorded in their notebooks. The Recorder reminded the jury of this interview in detail (see Transcript pages 30H to 32H). If Britzman had said what he was alleged to have done, there was strong evidence from which the jury could infer guilt.
It is unnecessary to set out in this judgment all of what was alleged to have been said by Britzman. One part of it illustrates its tone:
"Detective Inspector Whyte: Fred, we know you did the one at Putney Park Lane. There's no point in discussing it unless you want to put it on paper.
"Britzman: I might do that. Look, you've been fair with me so far. Let's stop pussy-footing about. We are probably fucked on that old woman, but it's still a bit iffy.
"Detective Inspector Whyte: Not as far as we are concerned.
"Britzman: It is if we get a jury.
"Detective Inspector Whyte: So.
"Britzman: It's a chance."
Later that day, according to Detective Constable Boal, he heard the two appellants shouting to one another whilst in their cells. Once again, if his evidence was accepted by the jury, guilt could be inferred from what was said. One passage was as follows:
"Hall: Look, we've only got to sweat this out. They can't keep us here forever. That old bird won't pick us out. Just keep your mouth shut. We'll be O.K.
"Britzman: We'll talk about it if they stick us together.
"Hall: I'll fucking do you if you say anything."
Britzman's case was that he had not spoken at all to Detective Constable Self on 29th May or to Detective Inspector Whyte and Detective Constable Boal on let June nor had he had a shouting match with Hall in the cells as alleged by Detective Constable Boal. Mr. Ingram, who appeared for Britzman and who is an experienced advocate in criminal cases, appreciated that putting his client's case to these police officers in cross-examination, as he had to do, was like walking through a legal minefield, because of the provisions of section 1(f)(ii) of the Criminal Evidence Act 1898. It is clear from the way Britzman gave his evidence that he too knew of the dangers, perhaps because his acquaintance with the criminal courts was longer than that of his counsel.
Any denial that the conversations had taken place at all necessarily meant by implication that the police officers had given false evidence which they had made up in order to get the appellants convicted. On the facts of this case there could be no question of mistake, misunderstanding or confusion. If Detective Inspector Whyte and Detective Constable Boal had made up this story, they had conspired together to commit perjury and had committed it. Detective Constable Self must have committed perjury when giving evidence about the alleged conversation on 29th May and Detective Constable Boal must have done the same about the cell conversation. The conversation on 1st June about which two officers gave evidence was long and of a kind which could have appeared in a television film script for a crime series.
A defence to a criminal charge which suggests that prosecution witnesses have deliberately made up false evidence in order to secure a conviction must involve imputations on the characters of those witnesses with the consequence that the trial Judge may, in the exercise of his discretion, allow prosecuting counsel to cross-examine the defendant about offences of which he has been convicted. In our judgment this is what Parliament intended should happen in most cases. When allegations of the fabrication of evidence are made against prosecution witnesses, as they often are these days, juries are entitled to know about the characters of those making them.
The duty of the Judge in such cases to exercise a discretion whether to allow prosecuting counsel to cross-examine a defendant about previous convictions puts defending counsel in a difficulty because some Judges, so Mr. Ingram told us and we accept from our own experience when we were at the Bar, will exercise their discretion in favour of the defendant if either he or his counsel avoids making specific allegations of misconduct. This practice has a long history and support for it can be found in R. v. Clark (1955) 39 Cr. App. R. 120 and R. v. Jones (1923) 17 Cr. App. R. 117. With such Judges a suggestion that a witness is mistaken or has misunderstood usually attracts a favourable exercise of discretion.
Britzman seems to have thought that Mr. Recorder Titheridge might be such a Judge, because he said in evidence that Detective Inspector Whyte had been mistaken in thinking that he had said what he was alleged to have done on 1st June. Mr. Ingram in cross-examination contended himself with suggesting to the officers that the alleged conversations had not taken place at all.
Mr. Recorder Titheridge would have none of this delicate forensic language. When prosecuting counsel applied for leave to cross-examine Britzman about his...
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