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traditional policing methods are. That is how one should have done it, but in this way they have set
up a trap and it is a lie.
JUSTICE BLOFELD: I have no doubt that it is a trap. Mr. Spencer started on the basis that it is a
ruse and ruse is another four letter word for trap.
MR. TANSEY: My Lord, also what was the purpose of these questions? How does the Crown
intend to use them? It clearly is a basic attempt to obtain admissions from this man against his
interests. That is why it took place and, in our submission, that is precisely what the Court of Appeal
said in R. v. Christou and Wright. It is wrong for police officers to adopt or use an undercover ruse
or disguise to enable themselves to ask questions about an offence uninhibited by the requirements
of the code and with the effect of circumventing it. That is exactly what they have done. The advice
set out in the Court of Appeal has been overturned completely, stood on its head, and if police
officers or MI5 are allowed to do this what, therefore, in our submission, is the point of the Court of
Appeal expressing this particular concern and reservation.
My Lord, that is why I say if the defendant had rang back, if the defendant had spoken to them, if he
had taken the initiative then, as in R. v. Christou and Wright, there would not be a leg to stand on,
but everything here comes from the police, MI5, and why are they doing it? The only reason they
are doing it is to gain evidence against this man, and they knew, and my Lord that is why I say the
background is clear, information from Oschenko. The search warrant taken out the day before on
7th August, the day before his arrest. So they had clearly decided they were going go and get him,
maybe not that very moment, but that very day. They could not hang about very long, because once
it came to the public about Oschenko then the evidence would disappear. They had all the
foundations upon which they could legitimately have questioned and arrested him.
We submit that this cannot be right, otherwise what is the point of the Court of Appeal saying these
things about how the police must behave and, my Lord, therefore if they can just bypass the code in
this way about questioning him and not having the answers in. My Lord, for example, why ask the
question, “I’m a colleague of your old friend Viktor. Do you remember him?” What is the point of
asking that question unless they wish to use it in evidence against him. My Lord, the proper way to
do that is not in this unfair way, but in fact to do it in the course of an interview, which is exactly
what they did in due course, they questioned him about it. But to do it in this way, in our submission,
is just not what is right. It is an unfair act. My Lord, the point I do rely on is the caveat set out here
and, likewise, in the case of R. v. Bryce to which I referred your Lordship, the police officer there,
undercover, put the question to him, went to the heart of the issue. “Do you know Viktor” goes to
the heart of the issue, if not straight to the heart, it is a rather important part of the prosecution case.
They did exactly the same. It was wrong to do it in R. v. Bryce and we submit, your Lordship, it is
wrong to do it in this case as well. My Lord, those are my submissions.
RULING
JUSTICE BLOFELD: Mr. Tansey, on behalf of the defendant, has taken the preliminary point
about the admissibility of a telephone call made by a member of MI5, using the christian name,
George, on 8th August to this defendant. The contents of that call were recorded. No point is taken
on their accuracy and the transcript of the telephone call has been played in court this afternoon.
Mr. Tansey submits that it would be unfair to admit that evidence, and he also submits that it would
be a breach of the Code C.10 (a). The background is that it is the Crown case that the defendant
was supplying information to Russia, and before that the U.S.S.R., and was at some time being run
by a man called Oshchenko, Viktor Oshchenko.
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