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conversations are being introduced into the case testimonially. It is because they are facts which do
not directly relate to this defendant but relate to the course of conduct of a Russian case officer
attempting to run an agent, and are therefore facts of how Russian officers in general attempt to run
their agents in these circumstances, and how Viktor Oshchenko did in this specific case. It does not
of itself implicate this defendant in anything because his name, as I say for the third time, was never
mentioned either directly or inferentially. Consequently, I take the view that this case can be
distinguished from the case of R. v. Kearley, and I therefore take the view that these conversations
can be referred to by the crown.
I add this caveat that they can only be referred to as to the instructions that Oshchenko gave to E
and his reactions to them. They cannot go further than that, because that would mean there might be
a risk of something coming in which could become “testimonial” evidence as opposed to factual