 |
 |
|
Viktor Oshchenko was a Russian working for the K.G.B. in the immediate dates prior to the 8th
August. He, in fact, sought asylum, Mr. Tansey says is gleaned from the papers, on 20th July 1992.
He defected on 25th July. He was then interviewed and by 7th August, by inference, he had been
debriefed to the extent that he disclosed to the authorities in the west the identity of this appellant
and some of his dealings with him.
On that day a Detective Superintendent applied for three search warrants to search the defendant’s
address and also his two vehicles. On 8th August this telephone call was made, in which George
said he was speaking on behalf of Viktor and asked if the appellant knew Viktor. He received the
affirmative answer and at that time, it is submitted by Mr. Tansey, there were reasonable grounds for
arresting the defendant.
He submits that the taking out of the search warrant on 7th August in itself shows that clearly, of
course, there must have been a question mark over the availability of Mr Oshchenko to give
evidence in any case, for a whole variety of reasons. Clearly, by pretending to be George and
speaking in an accent which certainly does not appear to be the Queen’s English, in those
circumstances there is an element of trickery.
It is clear, dealing with the first point first, that in certain circumstances paragraph C.10.(a) applies.
C.10.(a) reads:
“A person whom there are grounds to suspect of an offence must be cautioned before any questions
about it (or further question if it is his answers to previous questions that provide grounds for
suspicion) are put to him for the purpose of obtaining evidence which may be given to a court in a
prosecution.”
That is all I need read. It must be remembered that this conversation was clearly on equal terms.
There was no pressure. George, in the conversation, was not holding himself out as a person in a
position of authority as defined in the Police and Criminal Evidence Act and in the Codes or, indeed,
court decisions relating to those codes.
In those circumstances, I do not accept the argument that the Codes of Practice apply. I gain
support from the decision of the Court of Appeal in R. v. Christou and Wright (1992) 95 Cr.App.R.
264 at 271, which I shall refer to later in this brief judgement.
I do, however, accept as arguable Mr. Tansey’s point that the circumstances in which George came
to make this telephone call can be further considered as part and parcel of his submission that they
should be excluded in accordance with the provisions of Section 78 of the Police and Criminal
Evidence Act.
The section itself reads:
“In any proceedings the court may refuse to allow evidence on which the prosecution propose to
rely to be given if it appears to the court that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of the evidence would have such
an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
Mr. Tansey has taken me through a number of cases. Some can be distinguished as tricks that have
been applied after arrest, some are tricks before arrest. My view of those after arrest are that they
are only of help if they disclose anything by way of general principle. “It is equally clear, as has been
 |