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THE SOLICITOR GENERAL: And he recruited the defendant, because of the similarity in the
pattern -- the significant similarity in the patterns of behaviour.
MR. JUSTICE BLOFELD: Well, I have your submissions. I had better hear -- if we go into R. v.
Kearley in any detail you may have another bite at the cherry. Is there anything that you wanted to
add before Mr. Tansey?
THE SOLICITOR GENERAL: I think not.
MR. TANSEY: My Lord, what my learned friend has said is that he relies upon the statement of
Mr. E to prove testimonially what is effectively hearsay evidence. He is using the whole of Mr. E to
prove that Viktor Oschenko was the person who effectively is the Viktor referred to in the
telephone call. My Lord, I think he stated this very clearly. He needs this because without it he
cannot make the link. I happen to agree with your Lordship’s observations: it matters not basically
because the prosecution case against the defendant is very largely based upon his behaviour as on
arrest, the tradecraft notes in his possession, the inferences from that and all the other evidence. I do
not believe it is all that material to the prosecution case against us but that is ----
MR. JUSTICE BLOFELD: Neither you nor I run the prosecution case, Mr. Tansey.
MR. TANSEY: Indeed. What in fact is material is, if the Crown wishes to prove one of its
propositions, then our submission is that they cannot do it this way.
MR. JUSTICE BLOFELD: May I tell you that it seems to me at the moment -- can I approach it in
the way I tried to argue it with the Solicitor General. I started on the basis that it seems to me Mr.
E’s evidence about what goes on in Portugal is evidence of tradecraft and, as there is evidence
about Oporto, I think evidence of a man being recruited in England and going to Portugal is relevant,
because it goes directly to tradecraft. Do you disagree with that?
MR. TANSEY: I see the relevance but object to it.
MR. JUSTICE BLOFELD: You object because you say it cannot actually -- that cannot come out
with indirect reference to conversations.
MR. TANSEY: Indeed, yes.
MR. JUSTICE BLOFELD: You say that it is inextricably linked with the hearsay point.
MR. TANSEY: Yes.
MR. JUSTICE BLOFELD: Your argument on the hearsay point, if it is not ill-founded, in my view is
relevant. It might not take the prosecution case further but it is relevant.
MR. TANSEY: Subject to your Lordship’s finding that the fact of sending somebody to Portugal is
evidence from which one can say this is tradecraft.
MR. JUSTICE BLOFELD: That is a matter of argument.
MR. TANSEY: Can one actually say that? As your Lordship knows, many people have gone to
Portugal.
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