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responsive. In our submission, there is no difference from the point of view of the admissibility of that
evidence between what Gordievsky says and what Mr. E says, because they are describing
methods of operation, and what we are calling Mr. E to do is to describe a specific relationship
between himself and ----
MR. JUSTICE BLOFELD: You are making a distinction between this that, if Mr. E were going to
give evidence that he had a conversation with Viktor Oschenko, and in the course of one of those
conversations Viktor Oschenko said, “You are off to Portugal tomorrow morning; do have fun. By
the way we sent another of our trainee agents, a Michael Smith, there last year”, that clearly might
well be hearsay evidence.
THE SOLICITOR GENERAL: It is very curious that your Lordship puts that example because,
when we were discussing it upstairs, that is precisely the example that we considered as infringing
the rule against hearsay, but this does not draw the distinction between the two categories. If he said
some such thing, it would, because then it would be sought to be used testimonially, all this
transactional ----
MR. JUSTICE BLOFELD: That would then be elevating the words of the witness into evidence
against this particular defendant; the other is simply evidence of what goes on.
MR. JUSTICE BLOFELD: It is not a distinction that I find very easy to comprehend.
THE SOLICITOR GENERAL: It is easy to state -- relatively easy to state; more difficult to apply
in practice, as the cases demonstrate.
MR. JUSTICE BLOFELD: You are relying on Mr. E’s actions to show consistency of conduct with
Mr. Smith’s actions as an agent?
MR. JUSTICE BLOFELD: You are not relying on the actual words of Mr. Oschenko to prove
anything particular in respect of Mr. Smith?
THE SOLICITOR GENERAL: No, only to explain and amplify the actions, only as part and parcel
of the actions, because it then explains the relationship between ----
MR. JUSTICE BLOFELD: How does R. v. Kearley come into that or does it not?
THE SOLICITOR GENERAL: Well, it does not in our submission. Kearley covers a sort of
hypothetical case which your Lordship put.
MR. JUSTICE BLOFELD: Kearley was a drug shop, and the police went in and a number of
customers ran out, and they wanted to give evidence of what the customers were asking for in order
to show it was a drugs shop.
MR. JUSTICE BLOFELD: Did they mention the defendant by name or …?