JudgesRulings

CENTRAL CRIMINAL COURT

Central Criminal Court,

Old Bailey,

London,

E.C.4

Tuesday, 15th June 1993

Before:

THE HONOURABLE MR. JUSTICE BLOFELD

REGINA

MICHAEL JOHN SMITH

_____________

SIR D. SPENCER Q.C. (The Solicitor General) and MR. J. KELSEY-FRY appeared on behalf of

the prosecution.

MR. R. TANSEY Q.C. and MR. G. SUMMERS appeared on behalf of the defendant.

_____________

Transcript of the Palantype Notes of D.L. Sellers & Co.,

(Official Shorthand Writers to the Court)

10 High Street, Leatherhead, Surrey KT22 8AN

THE TELEPHONE CALL

SUBMISSIONS & RULING

RULING 22E et seq

Tuesday, 15th June 1993

THE SOLICITOR GENERAL: My Lord, I take it we are sitting in chambers? The equipment your

Lordship sees is available in order to play the recording of the telephone call. It might be helpful to

the Court to play it before making submissions. I would ask that it be played.

(A recording of the telephone conversation was played to the Court.)

That is the end of the telephone conversation. I do not know whether my learned friend wants the

rest of the tape which covers an attempt to ring the ’phone box. One hears the telephone ring, but

no reply; then a little later on a call by Mr B to the defendant’s home which picks up an answer from

the defendant’s answer machine.

JUSTICE BLOFELD: Do you want that, Mr. Tansey?

MR. TANSEY: Mr Lord, it is not necessary for our submission. We submit that this evidence, the

telephone call ------

JUSTICE BLOFELD: Before you start, Mr. Tansey, I am just thinking that normally admissibility is

taken after the jury is sworn, but before the opening. Are you content that I deal with it and make a

final ruling now?

MR. TANSEY: My Lord, yes.

JUSTICE BLOFELD: You are quite satisfied that no fresh matter will come to light? May I say this

I will make my ruling but if fresh matters come to light then you are free to take it again at that stage.

You are also free again to take the point after a jury has been sworn but before the opening in any

event should you wish to do so, but if nothing fresh has come to light unless you say you have a fresh

argument to put before me I shall almost certainly cut you short, it will still be fresh in my mind.

MR. TANSEY: Our submission is that this evidence has been unfairly obtained by a big trick and is

in clear breach of the defendant’s rights as set out in PACE. Your Lordship should exclude it in the

exercise of your discretion under Section 78. Your Lordship is aware of the facts, but may I just put

it into the context.

On 20th July, Mr. Oschenko sought asylum. On 25th July he defected.

JUSTICE BLOFELD: 1990?

MR. TANSEY: 1992

JUSTICE BLOFELD: On 20th July he sought asylum and on 15th?

MR. TANSEY: The 25th July.

JUSTICE BLOFELD: He defected.

MR. TANSEY: By 7th August Viktor Oschenko had been debriefed and had given the police and

MI5 significant detailed information against the defendant which gave the police and MI5 reasonable

grounds to suspect that the defendant had committed an offence contrary to the Official Secrets Act.

By that date, 7th August, the police had obviously carried out a number of inquiries. They knew his

address, and they knew that he had two cars. The precise details they also knew.

On 7th August, the day before his arrest, Mr. McLeod went to the Bow Street Magistrates Court

and he obtained a search warrant - in fact it is three search warrants - on 7th August 1992, one to

search 48A Burton Road -----

JUSTICE BLOFELD: A detective constable was that?

MR. TANSEY: My Lord, a detective superintendent --- to enter and search 48A Burton Road, the

defendant’s address, and two vehicles which are specified, the Datsun Cherry motor vehicle and a

Peugeot as well. Your Lordship may feel, therefore, it is quite clear that, by the conclusion of 7th

August, police officers had reasonable grounds to suspect that he had committed the offence and,

furthermore, by the fact that they had taken out the search warrant as well to search the premises, it

was clear that the police in a very short time were likely or were in fact going to arrest this

defendant. Of course, once the arrest begins then, as is well known, the police would in fact have

had to caution him, remind him of his right to silence and all the other rights of which your Lordship

is well aware.

We submit to your Lordship that the telephone call which took place on 8th August, not very long

before his arrest, was in fact an attempt to obtain admissions which the police wished to obtain from

him. In particular, your Lordship will notice the particular matters so far as Viktor is concerned,

“Hello.” “I’m George speaking. I’m a colleague of your old friend Viktor. Do you remember him?”

“Yes.” That was a clear attempt to obtain an admission from this defendant that he knew this

person, “Old friend Viktor.”

My Lord, further in addition they went on and they said it was urgent that they, in fact, should speak

to him, and the police arranged a meet. Now this meant, therefore, that this was a naked attempt to

bypass the safeguards of the Act, and the police, who we submit were clearly and obviously going

to arrest him on that day or shortly thereafter, should have cautioned him before they asked this

question and any others. Therefore, we submit it was obtained in clear breach of the safeguards of

the Police and Criminal Evidence Act.

My Lord, further, so far as this is concerned, we submit that this was a trap set up by the police to

trap him into making these admissions. The police engineered the whole conversation and they

engineered all the action that took place. We submit that the police should not do that. It is not their

function.

JUSTICE BLOFELD: Before you come on to the trap I am not quite clear I follow your first point.

On what basis do you say is the first ground that this should be excluded?

MR. TANSEY: The first basis is that this was an attempt to bypass PACE, that they should have

cautioned him.

JUSTICE BLOFELD: You are simply saying, in a broad brush approach, that it is unfair under

Section 78.

MR. TANSEY: My Lord, yes. My first point is that it is unfair because they have obtained an

admission from this defendant in circumstances which they should not have done.

JUSTICE BLOFELD: Are you relying on the codes or just relying …?

MR. TANSEY: My Lord, yes. I was going to refer your Lordship to the authority.

JUSTICE BLOFELD: I will come back to that. I have got the point thank you. Trapped then was

your second one.

MR. TANSEY: Well, if I can assist your Lordship ------

JUSTICE BLOFELD: Do not let me take you out of the way you want to do it, Mr. Tansey. I just

want to be certain I can follow you.

MR. TANSEY: That was the first proposition. This was a naked attempt to bypass the safeguards

of the Police and Criminal Evidence Act. My Lord, the second one was, and it goes with it of

course, is it was a trap and it was engineered from the outset to the end by the police, and

everything that took place was at the instigation of the police.

They rang him up. They lied to him in the telephone call. They said; “I am George speaking.” That

clearly was a lie. “I am a colleague of your old friend Viktor.” That was clearly a lie. So they lied to

him as to who they were and as to the purpose of the call. They then initiated what flows from that.

It is the police who say, an MI5 officer I believe, “It is very urgent for me to talk to you.” They

suggest to him exactly what happens. So, throughout the whole of the conversation, as your

Lordship will note, all this defendant said was “Hello,” “Yes,” “Okay,” “Yeah,” and “Bye.”

Everything that occurred was brought about by the specific actions of the police.

We submit that that was done as a way to trap him to make an admission so far as knowing this

person, Viktor, was concerned. We submit that the police should not do that, especially in these

circumstances when they have reasonable grounds to suspect him of having committed an offence.

The proper procedure for the police to follow is, if they are not going to arrest him there and then, to

observe him. To watch him. If necessary, to tap his telephone, as they may have powers under the

Act and especially in the light of the information they may have received. They then arrest and

question him in the proper way and then search him. We submit that what the police have done here

is improper. They have sought to gain an unfair advantage in circumstances which the law does not

accept.

My Lord, if I therefore come then to the law in question upon which we rely. My Lord, it is in the

code where a caution must be given. My Lord, I am using the actual code itself. If I may just read it

to your Lordship. It is Code C:10 (a). When a caution must be given.

JUSTICE BLOFELD: C:10 (a). I am sure it is in Archbold somewhere.

MR. TANSEY: My Lord, it is Volume 1 of Archbold, page 1799.

JUSTICE BLOFELD: Thank you, yes.

MR. TANSEY: My Lord, it is at the bottom of that page:

“A person whom there are grounds to suspect of an offence must be cautioned before any questions

about it, (or further questions 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. He therefore need not be cautioned if the questions are put for other purposes, for

example, to establish his identity or his ownership of any vehicle or the need to search him in the

exercise of powers of stop and search.”

My Lord, that sets out the principle, when the caution must be put. “A person whom there are

grounds to suspect of an offence must be cautioned.” Mandatory. “Must be cautioned before any

questions about it (or further questions 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.”

So, my Lord, that is the starting proposition. My Lord, may I refer your Lordship now to paragraph

15-359, Volume 1 in Archbold.

JUSTICE BLOFELD: I suppose that is right. I am just looking at 10.1; “A person whom there are

grounds to suspect of an offence must be cautioned before any questions about it …” I can see your

entrapment argument. He is really not being asked about an offence that he has already committed,

they are testing him to see whether he is committing any offence.

MR. TANSEY: Mr Lord, with respect, in fact, what the prosecution are seeking to establish is that

he in fact knew this man, Viktor Oshcenko who had given them certain information which they were

relying on. So, my Lord, it is in relation to that matter. The first thing they wish to establish is whether

or not he knows this man, Viktor. So, my Lord, that is the start off position so far as what they must

do.

My Lord, may I refer you to paragraph 15-359, which is Section 78 of the Act which your

Lordship knows well:

“In any proceedings the court may refuse to allow evidence on which the prosecution proposes 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.”

And Section 82. (3);

“Nothing in this part of this Act shall prejudice any power of a court to exclude evidence (whether

by preventing questions being put or otherwise) at its discretion.”

My Lord, it moves on then to the next page. (2) Applying Section 78. My Lord, it is paragraph 15-

364, just above that 15-363 where it says at number 7.

“There are two stages in the application of Section 78: first, the circumstances in which the evidence

came to be obtained; secondly, whether the admission of the evidence would have an adverse effect

upon the fairness of the proceedings. In considering fairness, a balance has to be struck between

that which is fair to the prosecution and that which is fair to the defence. But the final aspect of the

fairness test appears to relate only to the defendant: whether 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.”

My Lord, it is at 15-364. Applying Section 78: no general guidance, and your Lordship should see

the reference there to the case of R. v. Samuel. If you come further down that page it has;

For the effect of breaches of the Act or Codes, it says see 15-367, and it quotes the case of R. v.

Jelen and Katz, (1990) 90 Cr.App.R. 456, C.A., Auld J. giving the judgement of the court said;

“… the decision of a judge whether or not to exclude evidence under Section 78 of the 1984 Act is

made as a result of the exercise by him of a discretion based upon the particular circumstances of

the case and upon his assessment of the adverse effect, if any, it would have on the fairness of the

proceedings. The circumstances of each case are almost always different, and the judges may well

take different views in the proper exercise of their discretion even where the circumstances are

similar. This is not an apt field for hard case law and well-founded distinction between cases.”

My Lord, it then cites the case of R. v. Quinn, an identification case;

“… proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence

which, for one reason or another, the other side cannot properly challenge or meet, or where there

has been an abuse of process, e.g. because evidence has been obtained in deliberate breach of

procedures laid down in the official code of practice.”

My Lord, it moves on from there to paragraph 15-420. My Lord, this really now comes to the nub

of the matter. My Lord, if one looks at 15-420, it says;

“Before the Police and Criminal Evidence Act, in English, as opposed to Scots law, the method by

which evidence was obtained was strictly irrelevant. Therefore evidence was admissible which had

been stolen or obtained by an illegal search. But the authorities under the P.A.C.E. Act show that

evidence obtained improperly or by a trick may be excluded, either because the confession which

follows the impropriety may be rendered unreliable, or because an admission of the evidence would

have such an effect on the fairness of the proceedings that the court ought not to admit it.”

My Lord, it cites the case of R. v. Mason. I have that authority here, but if I just read it from

Archbold first.

“In R. v. Mason the defendant’s conviction for arson was quashed because police officers tricked

the defendant into making a confession. They told him and his solicitor, untruthfully, that his

fingerprint had been found on fragments of a bottle used in starting the fire. The trial judge had

wrongly admitted the evidence. He failed to consider, in the exercise of his discretion under Section

78, the deceit.”

My Lord, that was the case where the police officers lied to the defendant who had been arrested,

and they told him that they found his fingerprint on a bottle. That was totally untrue. They had no

such evidence at all and they lied to both the defendant and to the defendant’s solicitor, and

thereafter he made an admission.

The Court of Appeal ruled in that situation that that was quite wrong. The evidence should not have

been admitted having been obtained by this trick and this deceit. My Lord, the next case referred to

is R. v. Jelen and Katz and the appeal was dismissed.

“The Court of Appeal emphasised that the circumstances of each case considered for the purposes

of Section 78 were almost always different. In the R. v. Jelen and Katz one of the defendants, D,

had pleaded guilty to an offence of conspiracy to commit false accounting. He had been the first to

be arrested. He admitted his part and incriminated the two persons, J and K, who subsequently

became his co-defendants.

At the time of D’s arrest the police took the view that there was insufficient evidence to justify

arresting and charging J, but that if they interviewed him they would have to caution him. In these

circumstances they sought and received the assistance of D, who agreed to meet with J while

wearing a concealed tape-recorder. Such a meeting took place and the tape recording was admitted

in evidence. D also gave evidence for the prosecution. One other fact which is important so far as

the Section 78 argument is concerned is that D lied to J in the course of the taped conversation. He

said that he had said nothing to the police.

It was submitted that the tape ought to have been excluded, firstly because D had lied to J;

secondly, because it was a confidential discussion; thirdly, because D was acting as an agent of the

police who had, by the device of using him, avoided complying with the Code of Practice for the

detention, treatment and questioning of persons by Police Officers, Code C.

The Court of Appeal agreed that the case went beyond the deliberate overhearing of a defendant’s

conversation. There was an element of entrapment. The court saw no reason, however, to disagree

with the view of the trial judge that it was not unfair. As to the suggestion that the provisions of Code

C were being avoided, J had not been arrested. Code C’s provisions were for the protection of

those who were vulnerable because they were in the custody the police; they were not intended to

confine police investigation of crime to conduct which might be regarded as sporting to those under

investigation. R. v. Christou holds that on this particular point that is not quite accurate.

“The court did criticise the fact …”

My Lord I do not think that the next paragraph is relevant. Then the case on which they rely is R. v.

H. (1987) Crim.L.R. which was referred to in the judgement of R.v. Jelen and Katz “… without

disapproval but as being a decision based on its own quite different facts,” and the facts are there set

out.

My Lord, it then goes on to the next page and says;

“The use of undercover police officers and evidence obtained by a trick was considered by the

Court of Appeal in R. v. Christou.”

Would your Lordship like to go through Archbold first and then refer to the actual authorities?

JUSTICE BLOFELD: I see no point in going through Archbold if you are going to go to the

authorities.

MR. TANSEY: My Lord, I passed up to you R. v. Christou and Wright.

JUSTICE BLOFELD: That I have got on my table. Court of Appeal?

MR. TANSEY: (1992) 95 Cr.App.R.

JUSTICE BLOFELD: It is a red volume. I have got it in my room. Read out the relevant bit. I have

read this in my room, the whole of it.

MR. TANSEY: My Lord, police officers, undercover, set up this shop to which burglars brought

the property that they had stolen or handled from burglaries, and the submission made in general

terms was that the police should not have behaved in this particular way. The court, dismissing the

appeal, said:

“Although the evidence of the shop had admittedly been obtained from the appellants by a trick and

after the offences charged had been committed, the officers themselves had not participated in the

commission of any offence or incited crime, the judge’s conclusion that to admit the challenged

evidence would not adversely affect the fairness of the trial was correct and the way he exercised his

discretion could not be impugned.

As to the application of Code C of the Codes of Practice to the instant case, although it extended

beyond the treatment of those in detention, it was intended to protect suspects who were vulnerable

to abuse or pressure from police officers. The situation in the shop was quite different. The

appellants were not being questioned by the police officers acting as such. Conversation was on

equal terms. There could be no question of pressure or intimidation by the officers as persons

actually in authority or believed to be so. Therefore, the judge was correct in ruling that the Code

was not intended to apply in such a context.

Per curium: It would be wrong for police officers to use or adopt an undercover pose 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.”

We submit that is exactly what has happened in this case. My Lord, if I can refer your Lordship to

page 267 in the reports. Your Lordship will see the final paragraph. It says; “The first limb of Mr.

Thornton’s first submission depends strongly on the speeches in R. v. Sang (1979) 69 Cr.App.R.

and deals with the question of entrapment.

“However, the existence of a discretion in the judge to exclude legally admissible evidence, so as to

secure the fairness of the trial, was recognised as extending further than merely the exclusion of

evidence more prejudicial than probative,”

and it refers to other cases.

“Lord Diplock also pointed out that the only case brought to their Lordships’ attention in which an

appellate court had actually excluded evidence on the ground that it had been unfairly obtained by a

trick was R. v. Payne (1963) 47 Cr.App.R.

There was a defendant, charged with drunken driving, had been induced to undergo a medical

examination to see if he was ill on the understanding that the doctor would not test his fitness to

drive. However, the doctor gave evidence based on his examination that the defendant was unfit to

drive and Court of Criminal Appeal quashed the conviction.”

and they said; “This again, as it seems to me,” said Lord Diplock, “is analogous to unfairly inducing a

defendant to confess to an offence and the short judgement of the Court of Criminal Appeal is

clearly based upon the maxim nemo debet prodere se ipsum”

The passage relied upon by Mr. Thornton where Lord Diplock said;

“Nevertheless it has to be recognised that there is an unbroken series of dicta in judgements of

appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which

has been obtained unfairly or by trickery or oppressively, although except in R. v. Payne there has

never been a case in which those courts have come across conduct so unfair, so tricky or so

oppressive as to justify them holding that the discretion ought to have been exercised in favour of

exclusion.

In every one of those cases to which your Lordships have been referred where such dicta appear,

the source from which the evidence sought to be excluded had been obtained has been the

defendant himself or (in some of the search cases) premises occupied by him; and the dicta can be

traced to a common ancestor in Kuruma v. R. which I have already cited. That statement was not, in

my view, ever intended to acknowledge the existence of any wider discretion than to exclude (1)

admissible evidence which would probably have a prejudicial influence upon the minds of the jury

that would be out of proportion to its true evidential value; (2) evidence tantamount to a self-

incriminatory admission which was obtained from the defendant, after the offence had been

committed, by means which would justify a judge in excluding an actual confession which had the

like self-incriminating effect.

The function of the judge at a criminal trial as respects the admission of evidence is to ensure that the

accused has a fair trial according to law. It is no part of the judge’s function to exercise disciplinary

powers.”

My Lord, if one comes further down the page it starts;

“The test of unfairness is not that of a game: it is whether in the light of the considerations to which I

have referred the evidence, if admitted, would undermine the justice of the trial … For the conviction

of the guilty is in the public interest, as is the acquittal of the innocent.”

Lord Scarman went on:

“The dicta of three successive Lord Chief Justices are not to be lightly rejected. It is unnecessary for

the purposes of this appeal to express a conclusion upon them. But, always provided that these dicta

are treated as relating exclusively to the obtaining of evidence from the accused, I would not

necessarily dissent from them. If an accused is misled or tricked into providing evidence (whether it

be an admission or the provision of fingerprints or medical evidence or some other evidence), the

rule against self- incrimination is likely to be infringed. Each case must, of course, depend on its

circumstances. All I would say is that the principle of fairness, though concerned exclusively with the

use of evidence at trial, is not susceptible to categorisation or classification and is wide enough in

some circumstances to embrace the way in which, after the crime, evidence has been obtained from

the accused.”

My Lord, when, therefore, the court was dealing with the facts of this particular case your Lordship

will see, if you look at the paragraph beginning:

“In the result, the learned judge concluded that to admit the challenged evidence would not have an

adverse effect on the fairness of the trial. Nobody was forcing the defendants to do what they did.

They were not persuaded or encouraged to do what they did.”

Well, they were in this case, in the facts of Smith.

“They were doing in that shop exactly what they intended to do and in all probability what they

intended to do from the moment they got up that morning. They were dishonestly disposing of

dishonest goods. If the police had never set up the jewellers shop, they would, in my judgement,

have been doing the same thing, though of course they would not be doing it in that shop, at that

time. They were not tricked into doing what they would not otherwise have done, they were tricked

into doing what they wanted to do in that place and before witnesses and devices who can now

speak of what happened.

Putting it in different words, the trick was not applied to the appellants; they voluntarily applied

themselves to the trick.”

That is exactly what is not the case in the facts of our case. This trick was applied to the appellant. It

goes on:

“It is not every trick producing evidence against an accused which results in unfairness. There are, in

criminal investigations, a number of situations in which the police adopt ruses or trick in the public

interest to obtain evidence. For example, to trap a blackmailer, the victim may be used as an agent

of the police to arrange an appointment and false or marked money may be laid as bait to catch the

offender. A trick, certainly; in a sense too, a trick which results in a form of self-incrimination; but

not one which could reasonably be thought to involve unfairness. Cases such as Payne and Mason

are very different from the present case or the blackmail example. In Mason, as in Payne, the

defendant was in police custody at a police station. Officers lied to both the defendant and his

solicitor. Having no evidence against the defendant they falsely asserted that his fingerprint had been

found in an incriminating place in order to elicit admissions from him.”

My Lord, if you turn over the page, please, and you will see about a third of the way down

“Cautions” as set out there. Then dealing with that:

“It is accepted that Gary and Aggi had grounds to suspect each of the appellants of an offence. The

issue is whether the code applied to this situation at all. The learned judge concluded it did not. He

relied upon a passage in the judgement of this court in Jelen and Katz.

The provisions of the codes governing the detention, treatment and questioning of persons by police

officers are for the protection of those who are vulnerable because they are in the custody of the

police. They are not intended to confine the police investigation of crime to conduct which might be

regarded as sporting to those under investigation.

That passage is not quite accurate. It is true that the provisions of the code are very largely

concerned with those who are in custody, but not exclusively so. Thus, the first nine paragraphs are

concerned with those in detention. However, 10.1 and other paragraphs dealing with interviews are

not confined to those in custody. The learned judge recognised that the quoted passage required

some qualification. His amendment was that the code was intended to apply to people under

detention or people for whom detention has become, as it were, imminent. Even that amendment

may be too restrictive.”

Clearly it is suggested that the code was relevant and applied to people for whom detention was

becoming, as it were, imminent. It then continues citing Hodgson J. in the well known case of

Keenan. My Lord, continuing:

“In our view, although the code extends beyond the treatment of those in detention, what is clear is

that it was intended to protect suspects who are vulnerable to abuse or pressure from police officers

who may believe themselves to be so. Frequently, the suspect will be a detainee. But the code will

also apply where a suspect, not in detention, is being questioned about an offence by a police officer

acting as a police officer for the purpose of obtaining evidence. In that situation, the officer and the

suspect are not on equal terms.”

JUSTICE BLOFELD: Were they not on equal terms in this conversation?

MR. TANSEY: My Lord, it certainly would seem to be the case on the telephone. I do not think I

can argue they are not on equal terms because they are talking. “The appellants were not being

questioned by police officers acting as such. Conversation was on equal terms.” My Lord, that is in

terms of the actual conversation in the shop itself.

“There could be no question of pressure or intimidation. We agree with the learned judge that the

code simply was not intended to apply in such a context. In reaching that conclusion we should

ourselves go on to administer a caution.”

JUSTICE BLOFELD: It goes on to the next situation.

MR. TANSEY: My Lord, it is the paragraph after that. “In reaching that conclusion.”

JUSTICE BLOFELD: I am reading the paragraph before that.

MR. TANSEY: “The appellants were not being questioned by the police officers acting as such.”

JUSTICE BLOFELD: Yes. I am just considering that. What I am concerned about is if, there, the

Lord Chief Justice is saying that code was not intended to apply in such a context where it was on

equal terms and where there was no question of pressure or intimidation, I am not quite clear how

you say it applies to this case.

MR. TANSEY: My Lord, whether it is quite the same, the only difference being that one part is

(inaudible) and, of course, that is the case in the shop as well. The police officers are not saying that

they are police officers, they are pretending they are believed to receive stolen property. My Lord, it

is the next paragraph that is the important one:

“In reaching that conclusion, we should ourselves administer a caution. It would be wrong for police

officers to adopt or use an undercover pose 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.”

JUSTICE BLOFELD: That, really, it seems to me, is part of the entrapment argument rather than

the breach of the Codes.

MR. TANSEY: My Lord, we suggest that these two are intertwined, that they have used this pose

as a means of circumventing the safeguards of the caution as set out under the Act. My Lord, it is

put there in strong words about what the police must not do. It is wrong for them to adopt or use an

undercover pose or disguise. That is exactly what they did in this telephone conversation to enable

themselves to ask questions about an offence uninhibited by the requirements of the code and with

the effect of circumventing it.

JUSTICE BLOFELD: I am just going back to the earlier bit about the blackmailers. I can follow

that there could be argument, indeed I have heard argument on undercover police officers dealing

with blackmail, because they usually come into it once the blackmail threat has been made, as

alleged, so there were reasonable grounds for suspecting an offence had been committed.

I certainly heard argument, the case was about it, on your entrapment basis. I do not recollect any

authority saying that the code comes into them, because again there is no question of pressure.

There is no question of them being on unequal terms.

MR. TANSEY: My Lord, save, of course, by adopting what they have done, they have been able

to question the person which they should not do if they had done it properly in arresting him and then

they would have to caution him, because the value of using this pose, this disguise, is that the

defendant in this case would be misled as to who he is speaking with.

JUSTICE BLOFELD: I can see your argument on Section 78. I just do not see your argument at

the moment on 10.1 of the code.

MR. TANSEY: My Lord, when I refer to another case, my Lord, hopefully it will become clear.

That seems to be the relevant passage in this particular case. My Lord, the next case is the case of

R. v. Maclean and Kosten which is 19th February 1993. Your Lordship should have a copy of that.

JUSTICE BLOFELD: Again, I have read the whole of this.

MR. TANSEY: My Lord, so far as this case is concerned, my submission would be that in the case

of the appellant, Kosten, at all times he, the appellant, is initiating all the action. The police officers

are acting in response largely to his telephone calls and, my Lord, I make that point as a clear

distinction between that case, the case of Kosten, and the facts of this case, the case of Smith,

where the police make all the running, make all the proposals and make all the suggestions. In the

case of Kosten it is the appellant himself who is making all the running.

My Lord, if I can just pin point that for you. My Lord, it is page 2C.

“C was a different defendant, who lived in Holland, he was the courier. Customs officers were

concerned to discover who was responsible for selling the drugs in Holland and who was the

importer. They devised a scheme, described by the judge as a (Inaudible) and detailed subterfuge. It

involved recruiting the help of Kosten’s sister and her husband. On 27th October, after the arrest,

Kosten, the appellant, met Mrs. (Inaudible) and telephoned her, again taking the initiative. She told

him that Terry had not arrived. He telephoned again and spoke to Mr. (Inaudible).” My Lord, line

G; “Kosten spoke again to Mr. (Inaudible) on 29th October. In the course of the discussion

(Inaudible) gave Kosten the telephone number of a salvage operator called O’Connor who was, in

fact, a customs officer.”

It is significant, it is not O’Connor who is telephoning Kosten, but is clear from the next line;

“Kosten telephoned again. On this occasion Kosten offered to deal with C’s car. On 6th November

Kosten telephoned the hospital. On 7th November Kosten came to this country and was lured into

the belief that the other, C, had been severely injured. Kosten went to the hospital. Kosten

telephoned Mr. O’Connor’s number.” Line G. “Kosten had two conversations with Mr.

O’Connor.”

and those conversations were recorded and we have a transcript of them and the details are set out

there. Second telephone call, line C, two lines down:

“Kosten gave Mr. O’Connor the three combination numbers. 8th November, O’Connor met

Kosten by arrangement where Kosten was staying.”

JUSTICE BLOFELD: I will take what you said is right, because really you are only just fleshing out.

What you are saying is that it is Kosten making all the moves.

MR. TANSEY: My Lord, exactly, yes. So, therefore, it is not easy to say that the police tricked

him.

JUSTICE BLOFELD: Is that the particular point which was picked up by Tudor Evans J. when he

gave the judgement?

MR. TANSEY: My Lord, it is indeed, yes. My Lord, it is page 10(b).

“It was Kosten who, unprovoked, initiated contact. It is true that the Customs and Excise lured him

to this country, but at no time was he put under any pressure to reveal the information that he

discloses (Inaudible). He was acting as a free agent throughout and gave the information willingly.

The Customs and Excise had a duty to follow up such line of inquiry available to them to obtain

evidence against others. They did not force Kosten to reveal himself and provide information which

might incriminate himself. By a ruse they offered him the opportunity of doing so. The conversation

did not take place between a suspect and an officer in the role of an investigating officer.”

My Lord, in that case the court decided that this was not obtaining evidence unfairly by a trick, but

the reason on how I would distinguish a case like this, the customs officers are not playing the

leading role, not setting it up. It is the appellant in that case who, in fact, is making all the forward

action and is responsible for what occurred in due course. That is how we distinguish the facts of this

to the facts in the case of Smith.

My Lord, the final authority is the case of R. v. Bryce. This is a case which actually deals with the

matter your Lordship raised with me. Lord Owen, page 1(d), on the 13th August 1990.

“On 13th August 1990, as a result of information received, an undercover police officer using the

name Pearson made a telephone call to the appellant’s mobile telephone. The man who answered

confirmed that he was Paul and the following conversation took place.”

and your Lordship will see there the conversation that is set out. My Lord, let me make the point

straight away, here there is an undercover police officer who is actually telephoning the suspect, and

he asked him on the next page; “How warm is it?” “It is a couple of days old.” Arrangements were

made to meet. My Lord, page 2, line G. “How long has it been nicked?” “Two to three days.” My

Lord, thereafter he was then shortly arrested.

My Lord, at page 5(c), the two grounds for the appeal.

“The first raises again the question as to what evidence can be admitted of conversations between a

suspect and an undercover police officer, an issue recently addressed by this court in R. v. Christou

and Wright.”

My Lord, it sets out the facts there at G:

“The code extends beyond the treatment of those in detention, what is clear is that it is intended to

protect suspects who are vulnerable to abuse or pressure from police officers or may believe

themselves to be so. Frequently, the suspect will be a detainee, but the code will also apply where a

suspect, not in detention, is being questioned about an offence by a police officer acting as a police

officer for the purpose of obtaining evidence. In that situation they are not on equal terms.”

Then it mentions the matter of C at page 6. How it is wrong for a police officer to adopt or use an

undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by

the requirements of the code. My Lord, at D:

“Mr. Thomas argues that what took place offended against the final caveat in the passage cited. He

submits that the evidence that the appellant turned up in a stolen car as a result of a telephone call

was admissible. However, the conversation, he submits, should have been excluded because

‘Pearson’ asked questions which were in the nature of an interrogation. They deprived the appellant

of his right not to incriminate himself.”

My Lord, the questions to which they refer are those set out at page 1 of the judgement, the very

few questions and answers. So they deprive the appellant of his right not to incriminate himself by

answering questions, which, had they been put by a police officer acting overtly as such, would have

required a caution under the code. In particular Mr. Thomas points to the question “How warm is

it?” “It’s a couple of days old.” And the question and answer “Two to three days.” Those questions

went to the heart of the vital issue of dishonesty. They were not even necessary to any undercover

operation.

My Lord, it goes on then to paragraph E. My Lord, again I rely on this.

“In our judgement that series of questions by an undercover officer would clearly offend against the

caveat this court stated in R. v. Christou and Wright. It would blatantly have been an interrogation

with the effect, if not the design, of using an undercover pose to circumvent the code.”

Then it goes on;

“The two questions did not go as far as that. They were single, isolated questions and separate

conversations. There was no extended interrogation, but they did go directly to the critical issue of

guilty knowledge.”

In this case the critical issue of knowing Viktor. It went on: “Moreover, they were hotly disputed

and there was no contemporary record.” My Lord, it goes on explaining how the film and sound

record in R. v. Christou and Wright eliminated any question of concoction. There is no question,

obviously, of concoction in this case here. My Lord, they rule that those questions and answer, in

fact, should have been excluded by the learned judge. So, my Lord, our submission is, therefore,

that this was a case in which this defendant, this conversation, should not have taken place. That, in

fact, it was by a trick and police officers are in breach of the clear caveat set out by the court in R.

v. Christou. It bypasses the right to be cautioned and, in my submission, relying upon section 78 of

this Act, your Lordship should rule that this evidence should not be allowed.

JUSTICE BLOFELD: Thank you very much, Mr. Tansey.

THE SOLICITOR GENERAL: My Lord, my submission is, first of all, that the codes do not apply

to the facts of this case, and second that this was a ruse in the public interest and causes no

unfairness. The reason I say that is that the court has a discretion which can only be impugned on

Wednesbury principles in deciding whether to admit this evidence, and it, in our submission, must

look at all the circumstances of the case to see whether unfairness in the trial would result from this

admission.

In our submission, in exercising its discretion, the Court must have regard to, first of all, the

relationship of the equality that there was between the parties here. The defendant is in his own

home. This is not a case of a suspect at a police station, or a suspect at a police station with his

solicitor being deprived of the protection of a solicitor by a trick. This defendant was at home, taking

the call in his own time, at his own discretion, and with complete power to bring it to an end at any

time he felt like it by just putting the telephone down.

In our submission, who initiated the ’phone call, whether he began it or somebody else, is really

nothing to the point. It is only one of the circumstances in the case. There was no oppression in the

manner of the conversation. The conversation is recorded in permanent form in a way which means

that its integrity, on the face of it, cannot be impugned. It is a totally accurate verbatim account of

what took place, and it is a ruse and subterfuge designed to reflect what is in the defendant’s mind.

It will not succeed without there being present in the defendant’s mind something which can cause

him to react to it in a way which makes it evidentially probative.

In our submission it would be very contrary to the public interest if this ’phone call were not to be

admitted. It is very similar, in our submission, to the blackmail type of case where the police

intervene and make a ’phone call. It is very similar to many cases one has come across where

customs officers make telephone calls, either as undercover officers, or they get co-conspirators to

make telephone calls in order to get somebody to turn up at a particular place at a particular time

with drugs in order to -------

JUSTICE BLOFELD: I am sorry. I have listened to the telephone call itself. I cannot entirely

exclude from my mind what happened thereafter, because should the telephone call go, if it has any

probative effect, what thereafter happens, that the defendant then left the house and went where he

did go, is of no consequence to anybody because there is no way that the jury can understand it.

THE SOLICITOR GENERAL: That is right.

JUSTICE BLOFELD: Part and parcel of its probative effect is the actions thereafter. It is not like an

inadmissible conversation to some extent and then the murder weapon is found, and the murder

weapon goes in and the conversation does not, because the movements without the conversation are

almost unintelligible, not entirely, you might be able to glean some probative value, I suppose.

THE SOLICITOR GENERAL: The real thrust of the evidence, which is to show that the defendant

was responding to an existing relationship, would be lost and the relevance of the occasion of his

visit to Harrow the previous Thursday would be lost. Our submission is that when he decided to

leave the house, when he left the house, the circumstances in which he did, his return prior to his

arrest, he was always acting as a perfectly free agent in his own environment.

It would be impossible to say that the ’phone call, his actions taken on the basis of the ’phone call,

were in any way brought about by something that was unfair. We all know that the telephone system

is not a totally secure means of communication or by design or accident persons may overhear.

There is nothing mysterious or tricky about the ’phone calls made and, in our submission, there was

a position here of equality to the extent that the defendant, by exercising his own judgement, could

have either attached conditions or brought the thing to an end at any time. He chose not to do so.

JUSTICE BLOFELD: All right.

MR. TANSEY: My learned friend said that this is a ruse in the public interest. With respect, your

Lordship, that is just not right. If - because this is the basis on which the prosecution set out - they

have clear information on which they can arrest him, they have decided already that, in fact they are

going to search his premises, and therefore, as night follows day, they must therefore be intending to

arrest him very swiftly.

JUSTICE BLOFELD: I am not certain that follows.

MR. TANSEY: Well, my Lord, they must be pretty close to it. They have very much in their minds

a course of action which they are going to take and that must mean his arrest very swiftly. The

reason, it seems, for the speed of the action was the details of what happened to Oschenko

defecting had become more and more public and consequently the police had to act quickly before

any incriminating evidence could be destroyed.

We start off the situation here where, in fact, the police have the information on which they can

arrest him. They have the search warrant to search his house. Having arrested him they can question

him, etc for as long as they are entitled to do so. My Lord, in this situation how can they be justified

to take the course they have followed? This is not like the blackmailer. The police use subterfuges in

blackmail cases nearly always because that is the only way they can actually get the blackmailer.

They have to do this as a chance of trapping him, but in this case there is no need to trap him

because they have the material on which, for example -----

JUSTICE BLOFELD: I do not follow it

MR. TANSEY: My Lord, the position is clear from the very extensive interviews.

JUSTICE BLOFELD: Now we have got very extensive interviews, at that stage we did not have

very extensive interviews.

MR. TANSEY: My Lord, what we know from the very extent of the questions is that the police had

a vast amount of material that they put to this defendant.

JUSTICE BLOFELD: They had a vast amount of material, but they did not have a vast amount,

necessarily, of admissible material.

MR. TANSEY: What they certainly had, and this we know, they had the evidence of what, at least,

Oschenko had told them.

JUSTICE BLOFELD: Well, they had what Oschenko had told them. Again, if you are looking at it

now, we are looking at it also with the benefit of hindsight. To that extent the witness we have not

got is Oschenko.

MR. TANSEY: My Lord, indeed, and the fair way for the Crown to operate in this case will be not

to seek to get in through the back door about Viktor being Viktor Oschenko, if that is what they are

suggesting, but to do it properly and fairly by calling him so that the question can then be resolved

fairly and reasonably. My Lord, that is the fair way. If they want to say, as it seems they are going to

say, that Viktor is Viktor Oschenko then they should not be allowed to get it in the side door. There

is a simple way to do it, call him to give that evidence.

My Lord, in this case here the question is why did they need to use the ruse, because they did have

the material, they had Oschenko. Oschenko was giving them page after page after page of

debriefing information and, as your Lordship knows, we have been given some of it. There is a vast

amount of it.

JUSTICE BLOFELD: One matter strikes me. If Oschenko had been called he would properly be

treated as an accomplice, I am not certain that he would or not, but that is as it seems to me. I know

he is not a British citizen, but he certainly was involved in the criminal conduct alleged against your

client. It is always quite sensible to try and get evidence that is untainted.

MR. TANSEY: My Lord, if that is the case there are fairer ways of doing. For example, if they

believe that this man is dealing as an agent for the K.G.B. then what they do, as in many other cases,

they observe him. They watch his movements very carefully. They watch the telephones he goes to

and they tap his telephone and then they search his house. That is what they can do. That is what

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.

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

shown on a number of occasions, that the circumstances of each case are almost always different.”

That was said by Auld J. in R. v. Jelen and Katz 90 Cr.App.R 456 at page 464.

The matter was very carefully considered by the Court of Appeal in the case of R. v. Christou and

Wright (1992) 95 Cr.App.R. at 264, to which I have already referred, and I propose to read a

passage from the judgement at page 269 first, which is the judgement of the court being given by

Lord Lane C. J. After citing page 269, in the middle of the page, the trial judge gives his reasons for

admitting evidence in that case. The Lord Chief Justice went on:

“The trick was not applied to the appellants; they had voluntarily applied themselves to the trick. It is

not every trick producing evidence against an accused which results in unfairness. There are, in

criminal investigations, a number of situations in which the police adopt ruses or tricks in the public

interest to obtain evidence. For example, to trap a blackmailer, the victim may be used as an agent

of the police to arrange an appointment and false or marked money may be laid as a bait to catch

the offender. A trick, certainly; in a sense too, a trick which results in a form of self-incrimination; but

not one which could reasonably be thought to involve unfairness.”

Then, subsequently, dealing with Code C, the Lord Chief Justice cited a passage which is cited in

the later case of R. v. Bryce, which is in transcript only. It reads:

“In our view, although Code C extends beyond the treatment of those in detention, what is clear is

that it was intended to protect suspects who are vulnerable to abuse or pressure from police officers

or who may believe themselves to be so. Frequently, the suspect will be a detainee. But the code

will also apply where a suspect, not in detention, is being questioned about an offence by a police

officer acting as a police officer for the purpose of obtaining evidence. In that situation, the officer

and the suspect are not on equal terms. The officer is perceived to be in a position of authority; the

suspect may be intimidated or undermined. The situation at “Stardust Jewellers” was quite different.

The appellants were not being questioned by police officers acting as such. Conversation was on

equal terms. There could be no question of pressure or intimidation by Gary or Aggi as persons

actually in authority or believed to be so. We agree with the learned judge that the code simply was

not intended to apply in such a context. In reaching that conclusion, we should ourselves administer

a caution. It would be wrong for police officers to adopt or use an undercover pose 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. Where they do so, it would be open to the judge to exclude the

questions and answers under section 78 of the 1984 Act.”

That is what, in essence, Mr. Tansey submits is the case here. He says that they, in fact, should have

arrested this man. They were taking advantage to get admissions that they would not have got if he

had been cautioned and they were doing it deliberately, and it is not in the public interest to perform

such tricks.

Against that it must be remembered in the early passage I cited in R. v. Christou and Wright there

are some circumstances in which ruses are in the public interest. I have borne in mind the two

transcripts of R. v. Bryce, that transcript is of a judgement given in front of Lord Taylor C. J.,

Macpherson and Turner J.J. on 26th June 1992, and also a judgement in R. v. Maclean and Kosten

on 19th February 1993 in front of Neill L. J., Tudor Evans and Clarke J.J. Having considered both

of those, and in particular the case of R. v. Bryce where the evidence was excluded by the Court of

Appeal, it is interesting to note that Lord Taylor C. J. quoted the precise passage in R. v. Christou

and Wright which I have just referred to, and in the factual circumstances there, came to the

conclusion that the series of questions there asked by an undercover officer, clearly are to defend

against the caveat that the court stated in R. v. Christou and Wright.

Mr. Tansey submits that precisely the same situation applies here. Having considered the matter with

the greatest care, bearing in mind that the defendant was under no obligation to answer questions -

he was in his own home, it was a brief conversation, the conversation itself did not go directly to the

heart of the matter, as was the case in R. v. Bryce - I have come firmly to the conclusion, in the

exercise of my discretion, that this was a ruse in the public interest. It can be said that this is

prejudicial, but evidence that is capable of being probative is almost by definition also prejudicial to

a defendant. In my view, applying the reasoning in R. v. Christou and Wright, paying attention to the

decision particularly in R. v. Bryce I take the view that the (Inaudible) and I come to the conclusion,

clearly, that this evidence can properly be admitted and so I decide.

THE CENTRAL CRIMINAL COURT

Old Bailey,

London, E.4

Thursday, 24th June 1993

Before:

THE HONOURABLE MR. JUSTICE BLOFELD

REGINA

MICHAEL SMITH

_____________

SIR D. SPENCER Q.C. (The Solicitor General) and MR. J. KELSEY-FRY appeared

on behalf of the prosecution.

MR. R. TANSEY Q.C. and MR. G. SUMMERS appeared on behalf of the

defendant.

_____________

Computer aided transcript of the palantype notes of D.L. Sellers & Co.,

(Official Palantypists to the Court)

10 High Street,

Leatherhead,

Surrey KT22 8AN

(IN CAMERA PROCEEDINGS NOT TO BE DISCLOSED WITHOUT THE

AUTHORITY OF THE COURT)

Ex parte part removed

Thursday, 24th June 1993

(In open court)

THE CLERK OF THE COURT: Michael Smith; is that your name?

THE DEFENDANT: Yes.

THE SOLICITOR GENERAL: My Lord, I appear to represent the Queen, as it were, and Mr.

Amlot is here on behalf of GEC. We are sitting in open court. There remain a number of preliminary

issues to be resolved. We have been sitting previously in chambers to resolve civil issues, and

therefore my first application is that the court goes into chambers.

MR. JUSTICE BLOFELD: Some things are to be done in open court at some stage today or

tomorrow, are they or is everything to be dealt with in chambers?

THE SOLICITOR GENERAL: It would be easier to answer that question at the end of the hearing

when we will see what ruling ----

MR. JUSTICE BLOFELD: At the moment, whatever we do now, what you are really saying is that

there is nothing to be done in open court at this stage and we had better go into chambers. Does

anybody disagree with that? Complete silence. That means the general public will have to retire.

(In chambers)

THE SOLICITOR GENERAL: On Tuesday we supplied the defence with a witness statement of

Mr. E which your Lordship should have. A point arises in relation to disclosure concerning Mr. E’s

statement. We have been asked to supply three further pieces of information, item 65, 67 on a

notice dated the 23rd June and that ----

MR. JUSTICE BLOFELD: Hold on; 65 and 67 on a notice dated 23rd June?

THE SOLICITOR GENERAL: Yes, request for disclosure number 9.

MR. JUSTICE BLOFELD: That is a document I doubt I have. Mr. Tansey, has that been served

on the defence? It has not been served on the court.

MR. TANSEY: My Lord, I am sorry; it has not been served on the court. There is a copy here.

(Same handed)

THE SOLICITOR GENERAL: That raises issues of disclosure relating to public interest immunity

and I wish to hand to the court a file. I would be submitting to the court that certain documents in the

file can be disclosed subject to certain editing which I shall ask the court to approve, and the next

step I would invite the court to take is to adjourn and look at the material and then reconvene ex-

parte so I can make an application in some detail about documents and invite the court to rule ex-

parte.

MR. JUSTICE BLOFELD: All right.

THE SOLICITOR GENERAL: This is a similar type of file to the ones that the court has already

looked at.

MR. JUSTICE BLOFELD: Yes, I see. Well, I am not entirely certain what 67 means.

THE SOLICITOR GENERAL: Well, they are asking, “Who?”, in relation to the end of the

statement of E as to which photo he picked out.

MR. JUSTICE BLOFELD: Sorry, it may be Mr. Tansey can just make it clear to me, I do not

know what he means by this phrase (inaudible). Do you mean you wish to see a photograph of Mr.

Oschenko, or you wish to see something else?

MR. TANSEY: We assume it is Viktor Oschenko who has been picked out.

MR. JUSTICE BLOFELD: Well, I do not suppose the Crown are in any difficulty in telling you that

the answer to that, as I read it, is yes.

MR. TANSEY: It just deals with that point, my Lord.

MR. JUSTICE BLOFELD: What? The answer you have got is yes. Do you want anything more?

Can I put a line through sixty-seven? I can put a line through sixty-seven?

MR. TANSEY: Yes, you can.

MR. JUSTICE BLOFELD: Do you mean that you want to see a picture of him yourself.

MR. SUMMERS: My Lord, we have that.

MR. JUSTICE BLOFELD: In which case it has gone for good.

MR. SUMMERS: Yes.

MR. JUSTICE BLOFELD: All right. 65 and 66: such documents as may or may not be available in

the file you want me to look at. Have you flagged those which you are ----

THE SOLICITOR GENERAL: Can I just invite ----

MR. JUSTICE BLOFELD: Should this now be dealt with ex-parte?

THE SOLICITOR GENERAL: I think it should.

MR. JUSTICE BLOFELD: Very well.

MR. JUSTICE BLOFELD: The only matter that is slightly troubling me is that the authorities here

are slightly anxious about time tables. They are not the only ones there. Subject to solving the

problems in relation to Mr. E is the position that it looks as though we are going to get started on

Monday?

MR. TANSEY: The answer to that is no. If I can explain to your Lordship the reason why. What

we would like ----

MR. JUSTICE BLOFELD: Well, you can explain to me the reason why you are making a further

application.

MR. TANSEY: My Lord, yes. The prosecution served upon the defence yesterday that we had

sight of the night before, I have to say, of the statement of Mr. E.

MR. JUSTICE BLOFELD: I said excluding Mr. E.

MR. TANSEY: My Lord, Mrs. C deals with factual information and Mr. Morrisey, and there is also

Mr. Candice, but I am not concerned about Mr. Candice’s further evidence.

MR. JUSTICE BLOFELD: Who: Mr. Morrisey?

MR. TANSEY: Mr. Morrisey, yes.

MR. JUSTICE BLOFELD: I have got some papers that were handed to me this morning so I am

not very clear. Which are the three that you say you require? May I deal with it in this way, the

matters that were raised at the last hearing have they been resolved so that those matters are now

under control?

MR. TANSEY: Yes, I believe that is right.

MR. JUSTICE BLOFELD: So, it is new matters arising out of the fresh evidence.

MR. TANSEY: My Lord, yes. My Lord, Mrs. C, for example, deals with a totally ----

MR. JUSTICE BLOFELD: Well, I have some further evidence in a bundle. Which bundle is it that I

should look at?

MR. TANSEY: It is the same bundle I believe dated the 23rd June at the bottom.

MR. JUSTICE BLOFELD: I have got a statement from her dated - dated the 23rd June?

MR. TANSEY: I am sorry, the NFE is dated the 23rd June.

MR. JUSTICE BLOFELD: I have got two NFEs, one dated the 19th May which has a statement

bearing 186 to 187 of Mrs. C.

MR. TANSEY: It is not that I am referring to; it is the latest one which my Lord has.

MR. JUSTICE BLOFELD: I have got the 22nd June and then 23rd June; I see: 269.

MR. TANSEY: My Lord, yes, 269. That is a short statement. What it is doing is setting out

something which the prosecution have not done before in this case.

MR. JUSTICE BLOFELD: Where do I find exhibit number 81?

MR. TANSEY: It is 548. They have set out for the first time the chronological development of the

events in the former Soviet Union leading up to the following August 1991 coup etc.

Your Lordship has seen that exhibit one, a chronology of events of the former Soviet Union at 1985

to 1992, and that is set out at page 548.

MR. JUSTICE BLOFELD: Which are the matters that you say are not in the public interest, in the

public domain, and therefore cannot be checked by you?

MR. TANSEY: I am not saying that. I am saying this is part of the further evidence served upon us.

It sets out the history of matters which we obviously have to check etc., on which the prosecution

rely, this particular detail here from 1985.

MR. JUSTICE BLOFELD: That will not take you very long. It does not matter tuppence to your

case whether it was the 2nd September or 28th August, does it, you have never had anything to do

with Russia. Your client was dealing with a commercial spy. You can check that up. There is no

need for a delay. You can obviously ask the Solicitor General not to give precise dates if you want

to if anything turns on it; that is not going to take very long.

MR. TANSEY: It is purely, if the Crown relies on the chronology of events, my Lord, it is matters

that we will in fact ask questions upon.

MR. JUSTICE BLOFELD: I am not going to grant you any time for that alone.

MR. TANSEY: My Lord, I am just highlighting what has been served. We obviously have to check

that.

MR. JUSTICE BLOFELD: At the moment it does not seem to me, frankly, to be of any great

consequence either to the Crown or the defence.

MR. TANSEY: If the Crown rely upon it, it is of great consequence to the defence.

MR. JUSTICE BLOFELD: Well, I am sorry Mr. Tansey, but quite robustly I disagree with that.

Quite often the Crown rely on things and the defence do not care much about them at all. I cannot

see there is anything very much in this. If there is a date you want to check I would have thought it

could be done if you or Mr. Summers like to highlight the dates you are not sure of I would have

thought the Crown can help you. I cannot see any reason you could possibly seek ----

MR. TANSEY: My Lord, I have explained that is one further statement of a totally new dimension.

MR. JUSTICE BLOFELD: All right, well, that is one.

MR. TANSEY: My Lord, the next one is the statement of Detective Inspector Morrisey at 274.

That is a significant statement because what the prosecution has done is they in fact - it is a

development of the evidence of Mrs. C as it was. May I assist your Lordship so that your Lordship

understands the basis?

MR. JUSTICE BLOFELD: Yes.

MR. TANSEY: Mrs. C gave her evidence in respect of what she discovered in Oporto in 1972.

That does concern me because places change and Oporto may have changed. What has happened

is that there has been significant detailed enquiries about location and the geography of Portugal and

the prosecution place a great reliance on the Portuguese evidence, and your Lordship has seen how

the pagination here sets out various matters, and I gather there is more information to come as well

about this. It is now therefore subject, may I say, to the question of admissibility because I am

seeking to argue the admissibility of the Portuguese evidence. My Lord, subject to that if your

Lordship ruled it inadmissible then, my Lord, the reason for the delay would not apply; it is

effectively, we wish to probe and test each and every one of the matters referred to in the statement

by Mr. Morrisey, and though the statement is dated the 17th June we did not receive it until the

other night so, my Lord, there has been no chance to vet it and to check it and to actually go and

see it ourselves which we want to do because the Crown relies upon this.

MR. JUSTICE BLOFELD: Are you suggesting the defence team is flying out to Lisbon to have a

look at it?

MR. TANSEY: I personally will definitely go. I always go to the locus in quo upon which the

prosecution rely.

MR. JUSTICE BLOFELD: I hope you are not on legal aid.

MR. TANSEY: That is my own personal way of dealing with it. My Lord, the Crown has gone to

great lengths in this case to draw inferences about markings on a plan; they may be right, but the

defence case is they are not right. We do not ----

MR. JUSTICE BLOFELD: Why on earth - all right. I have got your point on this.

MR. TANSEY: May I say that is a matter that we certainly wish to probe and to test.

MR. JUSTICE BLOFELD: I can see that you may wish to probe it and I have some sympathy with

you there. As to whether you should personally probe it, I am bound to say I have no sympathy

whatever.

MR. TANSEY: My Lord, may I say, I personally cannot give evidence.

MR. JUSTICE BLOFELD: I would not dream of holding a trial up when you can send some

perfectly responsible person to deal with it. You have no specialised knowledge in this matter, Mr.

Tansey, you can get the instructions from somebody else.

MR. TANSEY: Indeed, that is right; I accept your Lordship’s observations personally, but the

Crown relies upon venue as being central to this case; it is my belief in serious cases there is a duty

to investigate it to establish whether or not it holds water.

MR. JUSTICE BLOFELD: I am not trying to stop you if it is admissible from checking it out; I am

trying to stop you checking it out personally.

MR. TANSEY: That is a different matter. That is my own personal preference. I have to say it is

proving invaluable in both directions in assisting and not assisting defence; it works both ways.

MR. JUSTICE BLOFELD: I am not criticising your admirable qualities, Mr. Tansey, I am simply

saying they are not unique.

MR. TANSEY: That is the second bit on which the Crown relies. The third matter does relate to the

evidence of Mr. E which obviously again is critical evidence on which the Crown relies.

MR. JUSTICE BLOFELD: I follow Mr. E, which is why I said subject to Mr. E. If these are the

two other matters I am not really in my own mind in a position to deal with Mr. E until I have looked

at the documentation which I am going to read.

MR. TANSEY: He, of course, may I say does create more problems.

MR. JUSTICE BLOFELD: Well, I must say I have read Mr. E’s evidence. I did not think there

was much in it.

MR. TANSEY: If your Lordship is minded to exclude it.

MR. JUSTICE BLOFELD: No, I was not necessarily saying that, but I did not think it would

require a great deal of time from the prosecution or the defence.

MR. TANSEY: The Crown do rely upon it and they place great reliance upon it and that is why ----

MR. JUSTICE BLOFELD: They place reliance on it. I do not think they necessarily place great

reliance on it.

MR. TANSEY: Your Lordship may hear the argument that is going to take place.

MR. JUSTICE BLOFELD: I will, no doubt. Are you taking the point it is not admissible?

MR. TANSEY: My Lord, I am saying we each know the basis on which it is relevant.

MR. JUSTICE BLOFELD: Are you taking a point that it is not admissible, because it is not

relevant?

MR. TANSEY: My Lord, that is subject to the whole admissibility of the Portuguese evidence in the

first place.

MR. JUSTICE BLOFELD: You say the Portuguese evidence goes and Mr. E goes too.

MR. TANSEY: Indeed, yes.

MR. JUSTICE BLOFELD: Yes, I follow. All right.

MR. TANSEY: My Lord, may be you should hear the argument in due course.

MR. JUSTICE BLOFELD: All right; if that is what it is I now can think about it; thank you very

much. I will read the file.

MR. TANSEY: May I just ask: has your Lordship received now a copy of Mr. Maher’s report?

MR. JUSTICE BLOFELD: I have and I have read it.

MR. TANSEY: My Lord, there is a great bundle of exhibits.

MR. JUSTICE BLOFELD: I have not been given those.

MR. TANSEY: Copies will be coming in due course. There are two big bundles approximately

750/800 pages for the purpose of which I will need to refer to in support of our argument.

MR. AMLOT: If this particular exercise is going to take till the midday adjournment may we go until

two o’clock?

MR. JUSTICE BLOFELD: I do not think it is going to take that long; it is 12 o’clock now. I think

we have got plenty to discuss without troubling you until two o’clock Mr. Amlot. I think rather - I

will certainly formally release you until 2.00. If you would like me brought into court with the other

counsel - are you going away from the building?

MR. AMLOT: I would if I was able to. I have spoken to my learned friends, and I know there are

other matters for your Lordship to consider. I hope very much that the question of whether the case

is heard in camera or not, or more particularly how much of the case is heard in camera can be dealt

with this afternoon but that is my view at present.

MR. JUSTICE BLOFELD: All right. I am not holding out any particular promises, but I will say not

before 2.00. I do not mind what order I deal with anything, but I think I can say no more than not

before 2.00. Having embarked on Mr. E I had better get on with that. Right; I will look at the file. Is

it here in the building?

THE SOLICITOR GENERAL: Yes, it is, my Lord. My Lord, it might help if your Lordship

remained in court when everybody else has gone in order that I can point your Lordship at particular

documents and some others I have got in my hand.

MR. JUSTICE BLOFELD: In which case we will now do what we have done before which will

mean everyone must withdraw apart from the Crown team and those who are required to remain in

court.

MR. TANSEY: I propose to go to the cells to see the defendant. When your Lordship is free

obviously we will come as soon as you are ready for me.

MR. JUSTICE BLOFELD: I am not going to release you until two because I am not certain what I

am going to deal with.

(Adjournment to deal with ex-parte application by the Crown)

MR. JUSTICE BLOFELD: Mr. Tansey, I think we can now start with the remainder of your

applications, do we not?

MR. TANSEY: In open court?

MR. JUSTICE BLOFELD: This is in open court. I have no objection to it being in open court, but I

will have it in chambers if anyone thinks it is appropriate.

MR. TANSEY: I believe this should be in chambers.

MR. JUSTICE BLOFELD: For what reason.

MR. TANSEY: My Lord, because the matters about which your Lordship was making decisions

are matters which, if your Lordship ruled in my favour, clearly I would not want to be heard to go

beyond this court. If it is in open court ----

MR. JUSTICE BLOFELD: If I ruled in your favour?

MR. TANSEY: Yes, and certain evidence should not be admissible.

MR. JUSTICE BLOFELD: I see. You mean you would not want it reported in case a prospective

jury might read of them.

MR. TANSEY: Or it brought to their attention.

MR. JUSTICE BLOFELD: That is remarkably unlikely, but if you feel there is a risk of that ----

MR. TANSEY: That is my only concern.

MR. JUSTICE BLOFELD: I with some reluctance will go into chambers. I do not like excluding the

press, but I am sorry about that.

THE CLERK OF THE COURT: The court is now in chambers.

(In chambers)

MR. TANSEY: My Lord, your Lordship has the documents which set out the prosecution skeleton

argument on admissibility, and that is the order that I am following for your Lordship’s assistance.

Your Lordship has ruled on one application already and we now come to number two, that the

evidence of Viktor Oschenko’s residence in London in 1972/1979 and his defection in July 1992.

My Lord, we submit that the residency of Viktor Oschenko in London in 1972 to 1979 is not

relevant or probative, and further that his defection in July 1992 too is not relevant to any issue in

this case.

We ask your Lordship to keep clearly in mind the date of the offences in question which, in fact, is

1992. My Lord, there is no evidence - I stress the word “evidence” - that Viktor Oschenko knew

this defendant in 1972 to 1979. There is no evidence that the defendant knew him at all or had any

dealings with him of any kind between 1972 and 1979. Further, there is no evidence that the

defendant had any dealings with Oschenko from 1979 to 1992 and, therefore, we submit that this

evidence is clearly not relevant in this case - not merely not relevant, but not probative - and we

would submit if admitted would be prejudicial.

My Lord, it seems the possibility that the prosecution may seek to rely upon the telephone call which

your Lordship has already ruled upon, “friend Victor”. My Lord, there is no evidence about which

Victor that telephone call refers to. There is no evidence that Victor is a foreign person. My Lord,

so far as the name Victor is concerned, as your Lordship well knows, that just a momentary thought,

two very prominent silks are called Victor - one can look ----

MR. JUSTICE BLOFELD: Who is the other?

MR. SUMMERS: Victor Durant and Victor Temple, and there are other Victors at the bar as well,

and I need not mention the great man Victor Sylvester, and so, no-one could suggest the name

carries a euphoric dimension. There is no evidence that Victor is a Russian of any kind. We have

looked at the diplomatic list for 1992 - my Lord, I have not got it to hand straight away - and, in

fact, there is a Victor at the Spanish Embassy, at the United States Embassy.

MR. JUSTICE BLOFELD: I think you have made your point; there are Victors all over the place.

MR. TANSEY: Yes. My Lord, the key matters the Crown say about this Victor, we would ask

your Lordship please just to look at the list which the prosecution has served upon us. My Lord, it is

exhibit 73, page 555

MR. JUSTICE BLOFELD: The diplomatic list in 1972?

MR. TANSEY: Yes, this relates to the London diplomatic list in respect of the Soviet Union and it

stops at the point of 1979. This is the significant point so far as we are concerned that, if one looks

at the diplomatic list of the Russian Embassy 1972 to 1979, one will see that there are many

different Victors; there are many different Russians there who have the first name Victor. 1972, page

505, your Lordship, has seen one, a Victor Ivanof. He is on page 505, and is about the third one

down. If your Lordship turns over the page then to 506 and about the seventh name down we will

see Victor Oschenko, and below that Victor Kribanov (?) and Victor Kubekin (?). My Lord, for

1972 there clearly were four Victors on the London diplomatic list for the Russian Embassy.

In 1973, page 508, one will see there are three Victors referred to there, starting about 6 down,

Victor Oschenko, Victor Kribanov (?), Victor Kubekin (?) for the year 1973.

For the year 1974, page 509 it starts, about the fourth line down, Soviet Union, Victor Ivanof - if

your Lordship turns over the page to 510; three more Victors: Oschenko, Ivanof and Kubekin(?) -

so, four for 1974.

We come to 1975, page 511, we have Victor Ivanof, Victor Mocnachiev (?), Victor Oschenko.

So, we have three there for 1975.

My Lord, we then come to 1976 and page 512, Victor Ivanof and, over the page, you have five

more for this year: Victor Mocnocheiv ----

MR. JUSTICE BLOFELD: Do numbers matter; you are making your point, there are plenty of

Victors.

MR. TANSEY: Yes, plenty of Victors. In 1977 and 1978 there are six Victors and in 1979 there

are five Victors. Therefore, what we submit is - the reason I have put to your Lordship is that when

the Crown seek to suggest that this could be the man Victor Oschenko it is on a totally flimsy basis

indeed, and in fact no-one could reasonably suggest that the Victor in the telephone call, if it is

assumed to be a foreigner, which we submit is a far-fetched proposition, indeed, because there are

Victors in this country, Victors in other countries of which we know, and here we have all these

Victors at the Russian Embassy at the material time at which Victor Oschenko is there. So how,

therefore, can they reasonably say to the jury that the Victor in question is this person Victor

Oschenko; and we therefore submit for that reason, my lord, there is not the basis for saying it is

Mr. Oschenko and it is too remote then to admit it, the prejudicial effect far outweighs the probative

value. My Lord, that is how I put the proposition at this stage.

MR. JUSTICE BLOFELD: Yes.

MR. TANSEY: My Lord, would it be best if my learned friend were to reply at this stage?

MR. JUSTICE BLOFELD: No, I would rather you went through the whole lot.

MR. TANSEY: The next matter is the evidence of the defendant’s membership of the Communist

League, or the Communist Party of Great Britain referred to in interview which went on until 1976.

Again, we ask you to bear in mind the date of these offences is 1990 to 1992. We submit that his

membership of those parties as seen from the interview, is not relevant. The changes governing that

time are quite separate and distinct; the fact that he was a member until 1976 is not relevant, that

there is membership of an organisation 14 years before does not allow the person to argue that they

are still a member of such an organisation, and there is no evidence that he is a member of the

Communist Party or has been one since 1976. The point we say is that masses of material was

taken from his address; no documentary evidence, no verbal evidence that he is a member of the

Communist party.

My Lord, when one considers the question of people changing their political views and political

perspectives over the years, people frequently over the passage of time change their political

viewpoints. There have been many changes: Dennis Healy many years ago was a younger man in the

Communist Party and then became involved in the Labour party. Likewise, the famous case of Reg

Prentice, a committed member of the Labour Party (inaudible) - people’s political perspectives do

switch and change over the years and, further more, as seems to be well known, the ranks of the

Communist Party were being depleted year in and year out. My Lord, therefore, we submit it really

is in fact far too unsatisfactory to suggest that the fact that he was a member in 1976, from this to

allow anyone to draw the inference that is a sympathiser of Communist Party in 1990 is just too

remote and it is too dangerous, in our submission, to allow such evidence to be adduced.

We say further, even if your Lordship, despite the age gap, or the gap of 14 years, to allow it to be

adduced in evidence to support charges in 1992 would be a far more prejudicial than probative so

far as this case is concerned, and so for that reason we would ask your Lordship to rule that this

evidence is not evidence of his character in 1990 1992, but evidence may be of what he was 14

years before, and how many people possibly would like to be judged today by their policies, politics

which they had 14 or 7 years ago. My Lord, that is how we put this proposition.

What we would submit urgently to your Lordship is that there is a very great danger that if the jury

are told that he was a member of the Communist Party in those years up to 1976 that could be so

prejudicial that the jury may not in fact pay sufficient attention to all the other evidence in the case

and use that effectively like a conviction of a similar nature, a similar character and hold that against

him, and that would be unfair.

My Lord, that is our submission so far as that particular piece of evidence is concerned.

My Lord, the fourth matter is the evidence of Mr. Smith’s employment in 1976 by EMI and his

working in the classified XN715 field project. This has got nothing to do with this case. It is blatant,

naked prejudice. He is not charged with any offence so far as this is concerned, his employment in

1976. There is no evidence of any wrong doing of any kind by him in 1976, and we submit it is just

not relevant at all so far as proving his involvement in this case at the date in question.

My Lord, our submission is to allow this evidence in is the Crown saying to the jury: “We know he

is not charged, but a nod is as good as a wink.” It is blatant prejudice, and therefore we would ask

your Lordship to rule that this evidence just is not relevant. But, even if your Lordship said, “Sorry, it

is relevant”, we say the prejudice of this far outweighs the probative value, because what the jury

may well start thinking is, “If this is 1976 and this goes on”, they will then say there is a whole chain

going on up to 1990/1992 and that would be quite wrong bearing in mind that there is no change of

any kind in respect of his employment at EMI.

My Lord, fifthly, his evidence to regain the security clearance and the evidence of the lies he told in

the course of that evidence. That is set out in the interviews in question.

Those attempts were in 1979 until June 1980. My Lord, that is set out in the documentation of

which your Lordship is aware over the statement in question.

MR. JUSTICE BLOFELD: I have read it.

MR. TANSEY: Those attempts in 1979 and 1980 have got nothing at all to do with his obtaining

work at HRC, because when he obtained his employment at HRC there were no lies about this; he

told no lies to obtain his work at HRC; he made no attempt of any kind to change his security

classification at all for HRC work. He did nothing wrong at all, or dishonest at all in order to obtain

this job and what we therefore submit is the fact that he told lies in the past in 1979 and 1980 is not

relevant to this. If he had lied to get his job then there might possibly be some relevance, but there

were no lies; it was up front and all above board and, therefore, we submit, to allow these attempts

of what he did in the past to be adduced in evidence is sheer prejudice, it is not probative but it is

very prejudicial indeed.

Again, in the exercise of your discretion we ask your Lordship to exclude that evidence.

My Lord, the sixth matter is the visit to Oporto in 1977. My Lord, does your Lordship want me to

address you upon that now? I certainly am able and willing to do so.

My Lord, the visit to Oporto and the Tradecraft in 1977 we submit is not relevant. His visit to

Oporto was in 1977, 14 years before the period in question. There is no evidence of any wrong

doing of any kind by him at that time and it has nothing at all to do with proving the charges that he

faces.

My Lord, your Lordship will know from the interviews what he said. My Lord, I do not know

whether your Lordship needs me to ----

MR. JUSTICE BLOFELD: No, I am familiar with it.

MR. TANSEY: He is basically saying that he was on holiday but your Lordship will also note that

what he ----

MR. JUSTICE BLOFELD: He was basically saying that he was in Portugal but there is nothing in

him while he is there.

MR. TANSEY: Indeed; but in addition to that, he also told the police that he was there in the

company of a Mr. John Watson - your Lordship will recall that - and naturally he was interviewed

by Detective Inspector Nicholson about it.

My Lord, the statements of Mr. Watson are, in fact, in the unused material and I do have copies for

your Lordship to read. I am sorry; it is obviously mine and it has been marked. (Same handed). I

wonder if I can assist my learned friend. Page 22 to 25 is the first statement of the 15th September

and the second statement is dated the 15th September at page 40 to page 44.

My Lord, can I ask your Lordship please to come to page 23 and it is the bottom of that page.

MR. JUSTICE BLOFELD: “I believe we had a loose plan of the route.”

MR. TANSEY: My Lord, that is right. “and I do not recall making this loose plan.” He then goes

on,

“As best as I recall we spent the first night sleeping in the car in France then travelled south to

Biarritz and then went to Spain via San Sebastian. Then we camped somewhere and went direct to

Oporto where we spent 2/3 nights. In Oporto I can remember only walking around a town, visiting

the Port lodges, visiting the tower bridge and Fado restaurant and we spent most of the time

together never using any form of transport. I do not recall going anywhere on my own.”

My Lord, that is interesting:

“I do not recall going anywhere on my own. I do not recall visiting any tourist offices. I think we

used the campsite office for any information.”

He then spoke about the most memorable occasion being a local festival at a place called Vittorio.

“I had a map. I must have had a map to find our way there. I do not recall meeting any particular

person. We did not speak the language. I don’t recall myself or Mick using the telephone during our

stay there or at any time on this holiday. My only recollection of the bars we used was one in the

main square which I think we visited twice. I cannot remember how long I used that particular

campsite in Oporto. I certainly did no research into the selection of this or any other campsite. After

Oporto we went straight to Madrid.”

He was then shown a map at the bottom.

MR. JUSTICE BLOFELD: What is the relevance of this statement?

MR. TANSEY: The relevance of the statement is that the defendant was interviewed and he gave

his explanation that he was there, he was on holiday, that he was with another man called John

Watson. He was interviewed and, my Lord, what the defendant said in interview is confirmed

effectively in general terms by this particular witness. My Lord, I rely upon the fact ----

MR. JUSTICE BLOFELD: How do you rely on that for admissibility? I can see if it goes in you

might want to call Mr. Watson which goes to weight; I do not see how it goes to admissibility.

MR. TANSEY: When your Lordship considers the overall circumstances about the evidence in

question, my Lord, I would ask you to bear this in mind in considering ----

MR. JUSTICE BLOFELD: I see your main point on Oporto that it is far too long ago and it is

tenuous, but I cannot see how Mr. Watson really applies.

MR. TANSEY: My Lord, the second point is there the suggestion is, “Well, the marks on the map

suggest Tradecraft”, and here we have the defendant saying, “Nonsense: a holiday.” The police

mention who he was with and it confirms what he is saying in effectively broad, general terms. We

submit that your Lordship should not cast that aside because it is relevant to a matter on which one

of the key issues is relevance and prejudice and in overall terms, and the inference that one can draw

from the map in question, because as the Crown are saying: “This is no holiday. This is all

nonsense.” We suggest that this was a holiday; he has told the police who he was with; they have

interviewed him and it confirms his account. My Lord, that is the relevance, that this was a genuine

holiday operation and not, as the Crown suggest, an occasion for a practice run for him.

Further (if I can then move on from this particular point) my Lord, the further matter is that if one

looks at the exhibit your Lordship has seen the exhibit.

MR. JUSTICE BLOFELD: No.

MR. TANSEY: Your Lordship has seen it.

MR. JUSTICE BLOFELD: I would not mind looking at it again; it is page 368, is it not?

THE SOLICITOR GENERAL: 368.

MR. TANSEY: Your Lordship sees 368.

MR. JUSTICE BLOFELD: Yes, I have got it. I have looked at it before; I will look at it again.

MR. TANSEY: My Lord, there are better ones to look at than 368.

MR. JUSTICE BLOFELD: I will look at any one you like.

MR. TANSEY: It is part of the prosecution exhibits served on us.

MR. JUSTICE BLOFELD: If the original is here I will look at that if you would like me to. I do not

think it matters particularly. The point that the Crown say is that it is a map of part of this town which

shows crosses on it.

MR. TANSEY: My Lord, yes, and what I would say is that many ----

MR. JUSTICE BLOFELD: Yes, you are not trying to persuade me if you are a tourist you might go

around working out possible hotels, possible restaurants, possible places of interest and mark it with

a cross so you might decide whether or not to go and see them; I quite see that.

MR. TANSEY: Yes, that is the obvious point one makes.

MR. JUSTICE BLOFELD: That is perfectly understandable tourist activity.

MR. TANSEY: Where, of course, it is significant is in how one contrasts this with the clear

tradecraft documents of which there is no argument, and your Lordship is well aware of the other

point, the vertical line with a cross, where clear Tradecraft inferences can be drawn from that. This is

of a totally different nature. It fits in with the sort of thing that anybody on holiday might do

themselves, or somebody else might do on their behalf.

MR. JUSTICE BLOFELD: Could you remind me of one matter? Was this document found before

your client was interviewed about Oporto.

THE SOLICITOR GENERAL: This document was found, my Lord, at the defendant’s home

together ----

MR. JUSTICE BLOFELD: I know it was; I realise that.

THE SOLICITOR GENERAL: ---- with the other documents and before he was interviewed. The

documents were found on various days, so it may be that it probably is the case that the interview

had begun, it may be, before this particular document had been found or before it had been

identified. It was put to him in the course of the interview.

MR. TANSEY: Our submission is that therefore when you just look at the document yourself that

nobody could reasonably, legitimately say: “This is Tradecraft”; it is far too vague to allow inferences

of this sort to be drawn from this document, and I make the point, your Lordship, to contrast this

with the other documents in the case where clearly there is a Tradecraft inference to be drawn.

MR. JUSTICE BLOFELD: I have to look at this, do I not, now in conjunction with the statement of

Mr. E?

MR. TANSEY: Well, my Lord, your Lordship does have to consider that as well, yes.

MR. JUSTICE BLOFELD: Because, I mean, I am not quite clear, but my impression is - I mean I

only say that because it has only been served on the court this morning, and no doubt I shall be told

precisely how the Crown are putting it, but I imagine they are putting it basically that it is rather too

much of a coincidence for somebody else being run by Mr. Oschenko to have been told to deliver

something in Oporto.

MR. TANSEY: My Lord, but it was not.

MR. JUSTICE BLOFELD: In Portugal I should say.

MR. TANSEY: How could one possibly say that?

MR. JUSTICE BLOFELD: I entirely follow that. It may be that the Crown consider it in a different

way; that is how I approach it at the moment.

MR. TANSEY: My Lord, yes. In addition to this your Lordship may know how in fact Mr

Gordievsky deals with this, and has a very different way of looking at it from Mrs. C, and I gather

that the Crown will be putting it the way that - Mrs. C has got certain facts wrong it seems. So, that

is it, my Lord, and I wait for them to assist your Lordship upon that, but Mr. Gordievsky is at page

189.

MR. JUSTICE BLOFELD: 189 of the statements?

MR. TANSEY: 189 in the middle of the page. He is asked for his opinion about the various maps

and he says,

“The marks on the map looked as if they could have an intelligence purpose. They could have been

marks on dead letterboxes, signal signs or agent meeting places … (read to word) … bus shelter.”

My Lord, I do not know what the latest information is about whether there was a bus shelter or not

in 1977. I wait for the Crown to assist on that as the most up to date information.

My Lord, if your Lordship uses other possibilities, that the crosses on the map are marks of the

route which a KGB contact was supposed to follow, probably stopping for a short period of time at

a bus stop before his meeting with the case officer in order to be checked. It is the bus stop that was

marked in a very small area that leads to this conclusion.

We wait to hear about the bus stops. My Lord, then, he says, and this is the interesting point at the

end, having said that the marks could have been (inaudible):

“I have not sufficient information to be certain that they are.”

So, he is clearly putting it that, as one reads it, it really is a speculative guess so far as this is

concerned that this in fact could be a Tradecraft document and, my Lord, bearing in mind what his

position is, for him to say, “I have not sufficient information to be certain that they are.”. I submit to

your Lordship it would not be right on this basis to allow this evidence to be adduced.

My Lord, Mrs. C’s evidence is page 181, and of course your Lordship will notice in her case that

she visited Oporto in September 1992 and has no knowledge of the state of play as it was in 1978,

1979, 1980 and she says, in September ----

MR. JUSTICE BLOFELD: I do not think her evidence really takes it much further, does it, because

she does not say what it was like in the appropriate year.

MR. TANSEY: My Lord, that is exactly right.

MR. JUSTICE BLOFELD: Then we have got this recent statement which you want to investigate.

MR. TANSEY: Your Lordship, yes.

MR. JUSTICE BLOFELD: From Detective Chief Inspector - that is what he is - Morrisey.

MR. TANSEY: So far as that is concerned, my Lord, my learned friends were seeking to assist us

at lunch time so far as his statement is concerned and, my Lord, could I ask them to assist your

Lordship on that because it seems that what he says about certain of his findings undermines the

findings of Mrs. C and the conclusions to be drawn from it.

MR. JUSTICE BLOFELD: That is what I understood you to be saying.

MR. TANSEY: Yes, I am sorry; I am just repeating it.

MR. JUSTICE BLOFELD: That is why I interrupted you, or stopped you from reading Mrs. C.

She is no longer relevant; it has been superseded.

MR. TANSEY: All that one is left with then is the further statement, or the additional statement of

Mr. E and, my Lord, that is a matter about which I have not addressed your Lordship so far. It is an

additional point; but, my Lord, so far as he is concerned ----

MR. JUSTICE BLOFELD: Mr Morrisey’s statement, as it stands at the moment, un-investigated by

you, seems to suggest - I have not analysed it - that the crosses are at any rate in places which

would be consistent with Tradecraft and rather inconsistent with a tourist interest.

MR. TANSEY: That is so. He says they are not places of tourist interest.

MR. JUSTICE BLOFELD: That seems to me in broad terms - I was trying to say in broad terms

that is roughly what he says.

MR. TANSEY: I leave it there. That is what I believe he is saying, yes, and so far as that is

concerned it is obviously a question of interpretation and that is a matter for us to look at carefully,

and that is why I say I am concerned and the late service of material upon me makes it difficult for us

to deal with for that reason. May I ask whether or not your Lordship should rule upon this at this

stage until we have had an opportunity to consider the evidence in question and then ask your

Lordship to rule ----

MR. JUSTICE BLOFELD: I can tell you straight away what I would be minded to do about

Oporto it is of any assistance to you. I think I should give a ruling, but I do not mind giving a ruling

holding Mr. E up, but so far as Mr. Morrisey’s evidence is concerned I do not think it would be

right to shut you out from making further representations once you have made investigations about it.

As I said at the very beginning, you will have to work awfully hard to persuade me that those

investigations have to be made by you personally.

MR. TANSEY: I hear that, your Lordship. Obviously the solicitors would do them. I have explained

to your Lordship the way I prefer personally to do this kind of work, but I accept your Lordship’s

observation on that. My Lord, certainly we face this difficulty of dealing with it without having had

the opportunity, although your Lordship seems to be accepting at this stage. Does your Lordship

want me to further address you upon this?

MR. JUSTICE BLOFELD: You point in broad terms - I would like you to deal with the principle.

You would like to know - I am not quite clear what you say. Do you say that you want to check to

see whether Mr. Morrisey has got it right? You say - let us take an example, for instance -

supposing in fact, to take an obvious example perhaps in a criminal trial, a police officer is called to

say, “I tested the route from A where the robbery took place and B where the defendant was

arrested. It takes 17 minutes. I have done it in the rush hour” - and we all know the type of evidence

- the fact that you may then send your private enquiry agent to do it and he says it does not take 17

minutes, it takes 27 minutes on Sunday evenings 39 minutes every other day of the week. It does

not actually mean that other statement is inadmissible. I am just wondering how much what

investigations you are going to make go to admissibility?

MR. TANSEY: My Lord, the evidence he gives is that there were no places of tourist information,

of tourist interest at the crosses in question. That is the matter that is central to the whole argument.

MR. JUSTICE BLOFELD: I quite see that you are saying that some particular tourist is deeply

interested in buying the umbrellas in Oporto, or whatever it may be. I am not trying to be facetious,

but that is the sort of the thing that could be said. I read it as there is no museum or ancient

monument or something on the normal tourist route.

MR. TANSEY: My Lord, so far as this is concerned, if our investigations show that his assertion

was not a valid assertion, we would consider asking your Lordship to hear evidence on this to

determine this question because of the immense importance of what is being suggested.

MR. JUSTICE BLOFELD: I was rather hoping you might suggest I might fly out there myself.

MR. TANSEY: My Lord, that is the importance of it

MR. JUSTICE BLOFELD: Yes, I see.

MR. TANSEY: Because he says this is not of tourist interest. Well, that may or may not be correct.

If, my Lord, we go back and say, “He is absolutely wrong, there are matters of great interest there

to some people”, then your Lordship can see I might need to resolve this. It is in respect of that

matter that we would ask your Lordship to consider the question - that is why we need the time to

see whether or not what he is saying is accurate - because if we were able to show to your Lordship

it is not right what he says, it is incorrect, then your Lordship will say, “Well, that must affect the

question in my mind whether or not under the question of discretion this evidence should be

admitted.” My Lord, that is how we put it and need to investigate it further. That is what we need.

MR. JUSTICE BLOFELD: You are really dealing with two points. You are dealing with

admissibility and also dealing with timing and, frankly, I am by no means convinced at the moment

that this information could not be found in London. There are plenty of Spanish tourists in Britain,

there are plenty of Portuguese shippers who know all about this area only too well and who have

endless plans available; I would not have thought it was very difficult. I may be biased because this

happens to be a town I personally know remarkably well; but there it is.

MR. TANSEY: I can only put you in the position that we find ourselves in.

MR. JUSTICE BLOFELD: I cannot in any way see - if necessary no doubt if you want to make

further enquiries out in Oporto somebody could be contacted out there; faxes can be done; there

are a large number of English speaking people out there and information can come back. There is

nothing to stop the trial from getting underway; these could be kept under wraps until you are

properly instructed.

MR. TANSEY: I would be happy with that.

MR. JUSTICE BLOFELD: I certainly see that you want to know your position before any evidence

is mentioned in court. I do not think there should be any difficulty about that.

MR. TANSEY: I thought, my Lord, that the Crown wished to rely upon this as a material part of

their opening.

MR. JUSTICE BLOFELD: They might well do. If they have served it late they may have to do

without it, Mr. Tansey. I am not ruling at the moment, but I do not find it insuperable. I have got

your argument on that. What after Oporto; where do we go after that, or is that really all of them?

MR. TANSEY: My Lord, that is really all subject to the question of Mr. E. That is a little bit of a

separate matter.

MR. JUSTICE BLOFELD: All right; let us look at Mr. E’s statement again. Mr. E has gone

missing?

MR. TANSEY: My Lord, again, insofar as he is concerned we ask the question: “What is the

relevance of his evidence and how can it be admissible?” and further ----

MR. JUSTICE BLOFELD: Well, as it is not in the opening note would you like to reserve your

position about this and I will hear what the Crown say and you can come back to me?

MR. TANSEY: Those are all the matters.

MR. JUSTICE BLOFELD: All right.

MR. TANSEY: There is, of course, the other issue about sitting in camera.

MR. JUSTICE BLOFELD: Yes, I think if Mr. Amlot will forgive me, we will certainly complete that

today, but I would like to complete this first if I can. May I tell you what I want to hear you on. I

need not trouble you about Mr. Oschenko’s residence or about number three, or about number five,

but number four concerns me to this extent: I quite see that you may say that it is relevant and I

would accept that it is relevant to show that in 1976 Mr. Smith had employment at EMI on classified

work, but I am by no means certain that it is probative to go into details of it.

THE SOLICITOR GENERAL: Yes, our purpose is when compared with Mr. E to show that the

marked similarity - we know that Mr. E was recruited by Viktor Oschenko; we know how he

behaved, and we say, in substance, the defendant in substance behaved in the same way.

MR. JUSTICE BLOFELD: I follow; therefore, you want that it is classified work; but I cannot see

that - I can see there is something in Mr. Tansey’s argument if you go into the details of it, as there is

no evidence before me that he disclosed evidence, he disclosed information to the Russians at that

stage, I cannot see that you are entitled to the details of it.

THE SOLICITOR GENERAL: No, provided I can make the case that, like E, he was striving, or

that he obtained access to classified work, having lost his access he was striving to get it back.

MR. JUSTICE BLOFELD: That you can have, three and five. I accept that. As to six, I think what

Mr. Tansey really wants to know is how do you put Mr. E in the context of Oporto and in the

context of the whole case?

THE SOLICITOR GENERAL: In the context of the whole case we put his evidence in this way: the

prime purpose in calling Mr. E is to prove that Viktor Oschenko was a member of the KGB, and to

prove it by admissible evidence rather than by assertion from Mrs. C for example; that is the first

reason. The other reason, the second reason we wish to adduce his evidence, is because in our

submission there is a marked similarity between his behaviour and that of the defendant. We know

Mr. E was recruited by Viktor Oschenko and for what purpose and, therefore, the jury would be

entitled to use that information in deciding the defendant’s motives and his intent in regard to getting

employment at EMI, trying to get his security clearance back and in regard to the William’s letter.

It is quite plain from Mr. E’s evidence that he was directed to get access to some important

information. Contact was made with him through ’phone boxes, he was viewed as a long term mole,

he was handed over to a successor by Victor, he went out to Lisbon at the instructions of the KGB

in order to carry out an operation for them and, in our submission, the behaviour of E is relevant in

determining in the defendant’s case first what is the true import of the William’s letter when it says,

“A lot of water has flown under the bridge”? What sort of relationship is it talking about? And,

secondly, what was the purpose of the defendant’s visit to Oporto?

The defendant has said that he went there on holiday, that the marks on the map were put there by

somebody in a tourist office because they are places of tourist interest. It is our case that he was sent

there by the Victor on an operation and one gets light thrown on that by the fact that Mr. E is saying

that the KGB sent him to a different place in Portugal, or Lisbon to do a very similar thing, and we

know what the reason for that was so, the jury would be entitled to take into account E’s evidence

on Lisbon in deciding the significance of the Oporto evidence against this defendant. That is how we

say the evidence of Mr E. is relevant in this case.

MR. JUSTICE BLOFELD: Thank you.

MR. JUSTICE BLOFELD: Mr. Tansey, you can reply on four and six.

MR. TANSEY: My Lord, if I may deal with four. I have put the matter to your Lordship effectively.

MR. JUSTICE BLOFELD: I am with you to some extent, as you follow. Not as far as you want me

to go, but better than nothing.

MR. TANSEY: It seems that the words, “He worked with classified material but nothing in

particular.”

MR. JUSTICE BLOFELD: Yes.

MR. TANSEY: I do not think I can take it any further.

MR. JUSTICE BLOFELD: There may well be a later stage of the trial once we get under way,

some argument as to how far precisely the Crown can go, and you can reserve your position on that

because I quite see it is difficult to do more at the moment than pointing out that in opening they can

go no further than classified work. They may want to put a little bit of flesh on the bones. I am not

ruling out that they might be entitled to, but certainly not so far as it goes at the moment because at

the moment I do take your point that there is an inference that he was supplying information about

the “Fuse project” to the Russians and that is not the case.

MR. TANSEY: Thank you. My Lord, can I deal then with Mr. E. If your Lordship - your Lordship

has not looked at the statement.

MR. JUSTICE BLOFELD: I have read it in detail.

MR. TANSEY: Our objection is that much of this statement is hearsay evidence.

MR. JUSTICE BLOFELD: Yes, I do not I think a lot of it is hearsay.

MR. TANSEY: The Crown is seeking to use it to establish their case and, my Lord, we object to

that.

MR. JUSTICE BLOFELD: You certainly need not have worries about the hearsay: that can come

out.

MR. TANSEY: My Lord, there is, of course, the major difference in between the two, between E

and this defendant. It was not Victor Oschenko, according to Mr. E, who got him to go to Portugal.

The person responsible was the person George, and the modus operandi of different agents cannot

be used to establish the case against this defendant. My Lord it was ----

MR. JUSTICE BLOFELD: I am not certain that is a valid argument, is it, because Mr. E’s

statement, which I have still mislaid, is that he was an agent run by Victor, handed over to a man

with another name because Victor, in fact, ceased to be resident in this country.

MR. TANSEY: My Lord, yes. My Lord, what is he going to be able to say about George without

hearsay evidence effectively. My Lord, it is ----

MR. JUSTICE BLOFELD: E can surely say that he was run by George.

MR. TANSEY: My Lord ----

MR. JUSTICE BLOFELD: There we are; I have got it now. He can say that he was taken out to

dinner by Victor; he can say he had discussions with Victor; he can say that Victor was Russian; he

can perfectly well say without going into the details - he is certainly entitled, I would have thought, to

say that he was being given money in return, if possible, for information. It seems to me that is

admissible.

MR. TANSEY: My Lord, it then goes on further and it says: “The things that I can specifically

remember about George were a visit he had just made to Lisbon.”

MR. JUSTICE BLOFELD: He can say that he flew out to Lisbon at some stage and he is entitled to

say why, just like if somebody is going out abroad he can say, “Because my company required me

to do so.”

MR. TANSEY: My Lord, what he can say is, “He provided me with an envelope.”

MR. JUSTICE BLOFELD: Yes, exactly.

MR. TANSEY: It then goes on: “He asked me to hand it over to a person at a specified time and

place in Lisbon.” I object to that.

MR. JUSTICE BLOFELD: He can say without saying the instructions, “What did you do in

Lisbon?” “I did this, that and the other.” He can be asked - I am sure that any of the team for the

Crown can put it in a way that will not offend the hearsay rule.

MR. TANSEY: My Lord ----

MR. JUSTICE BLOFELD: If it does, you will be on your feet and I shall support you.

MR. TANSEY: It goes on.

MR. JUSTICE BLOFELD: I do not think any of this if I may say so, Mr. Tansey, goes to

admissibility.

MR. TANSEY: On the hearsay, I agree, my Lord. My Lord, if this is evidence of a system your

Lordship will note I have pointed out the difference between them that one is sending an envelope

and another is somebody going out there. My Lord, it is a strange way for the Crown to operate, in

fact, for the Crown to say, “here; you go. I’ll give it to so and so. I don’t mind if the KGB don’t

mind.” But here is somebody going - he is sent out with an envelope - a test run? We suggest the

prosecution case does not make sense.

MR. JUSTICE BLOFELD: It strikes me it may, for all one knows, blow up the prosecution case to

be a very powerful weapon to the defence. I cannot see it is not admissible at the moment, because

the points you make may turn out to have a great deal of weight in them. You may be able to say,

“This is absolutely absurd.” I cannot see at the moment that they are not entitled to try.

MR. TANSEY: I have put the arguments so far as that is concerned. I do not think I can take it any

further so far as that proposition. My Lord, I do have matters to address to you.

MR. JUSTICE BLOFELD: May I just put it another way: supposing you were in the position to call

an agent on behalf of your client, Mr. Smith, on the basis that very fortunately you had got hold of

somebody who had been an agent working with the KGB who would say, “I was run by Victor

Oschenko; he did it a totally different way”, and if the Crown said, “You cannot call that evidence”,

you would be dismayed if the court said, “No, you cannot.”

MR. TANSEY: Your Lordship is right.

MR. JUSTICE BLOFELD: In which case, on the old principle that sauce for the goose is sauce for

the gander, I cannot see that you have got much to grumble about.

MR. TANSEY: Your Lordship does have a discretion in this case about the admissibility or

prejudice.

MR. JUSTICE BLOFELD: I am aware of the prejudicial effect against probative.

MR. TANSEY: My Lord, subject to the other matters about this witness which we will ask your

Lordship to consider, my Lord, I cannot argue the admissibility any further on that basis.

MR. JUSTICE BLOFELD: All right.

MR. TANSEY: In the light of your Lordship’s observations, may I say so far as Mr. E is concerned

that there are matters which we do wish to raise with your Lordship, but may be after your Lordship

has ruled on this.

MR. JUSTICE BLOFELD: I think I better rule on admissibility.

THE SOLICITOR GENERAL: I have heard what has passed between your Lordship and my

learned friend; it is our submission that the matters he has been referring to, namely, the instructions

given to Mr. E by George, are not hearsay at all.

Our case is that the information which the defendant admits passing on to another person was

passed to the KGB and therefore it is an issue in this case, namely, as to what the modus operandi

of the KGB is. How can you tell what modus operandi of the KGB is unless you produce evidence

of what they say to their agents, how they get them to operate. There is absolutely no difference

evidentially between passing over an envelope and evidence about the conversation, the instructions

which causes that to be done because there may be something in it which shows it is the KGB rather

than anything else. So, in our submissions, the instructions that were given to E, whether by George,

by Victor, or by any other KGB agent at the time are admissible.

MR. TANSEY: That is classic hearsay and, my Lord ----

MR. JUSTICE BLOFELD: I am not going to decide that. You can tell the prosecution if it becomes

admissible - I am about to rule on it - how you want them to open it and it can be dealt with in due

course either before, if it is admissible - which I am bound to tell you I am going to rule it is - you

can decide either before the opening or when Mr. E comes. I do not mind.

RULING

MR JUSTICE BLOFELD: Mr. Tansey submits on behalf of the defendant in this case that various

parts of the evidence should not be allowed to be adduced by the Crown. He submits, first of all,

that the evidence of Mr. Oshchenko’s residency in London from 1972 to 1979, and his defection in

June 1992 should not be admitted.

Mr. Oshchenko was during that period on the diplomatic list as a secretary at the Russian Embassy

in London from 1972 to 1979. It is the Crown’s case that whether in addition to his secretarial

duties, or in fact separately he was a KGB agent, and that it was a mere charade that he was a

secretary as well is immaterial because their case is that he was there in England as a Russian agent.

Their case is that during that period he, in fact, recruited Mr. Smith to pass information to the USSR.

It is submitted that there is no evidence that Mr. Smith knew Mr. Oshchenko during that period,

there is no evidence that he had any dealings with him during that period 1972 to 1979 and there is

no evidence that he has had any dealings thereafter with him in 1979 to 1992.

The Crown submits, insofar as I have their written submissions before me which I have read and,

therefore, rely upon, that in fact they can rely on the use of Victor’s name in the telephone call

shortly before his arrest; they rely upon on the fact that Mr. Oshchenko’s defection on the 25th July

1992 would have been known to somebody who they say was an agent and that, therefore, the

behaviour of Mr. Smith can be directly related to the knowledge of Mr. Oshchenko’s defection.

They further say that now that they have served notice of a Mr. E as a witness that the pattern

shown of Mr. E’s behaviour is sufficiently similar for the jury to be able to infer that Mr. Oshchenko

was running Mr. Smith as an agent and therefore that he had had dealings with him. They rely on a

number of matters there.

The defence submit that all this evidence is remarkably shadowy. They point to the fact there are a

large number of people called Victor, both in the diplomatic and out of the diplomatic world and

have taken the court through a number of the diplomatic lists. There are a large number of Victors

every year in the Russian Embassy. They say this evidence is wholly unsafe and a great deal more

prejudicial than probative.

I take the view that looking at the whole of the evidence in this case that this evidence is admissible.

I reject the defence submission on this matter and I rule that evidence can be given.

I turn on to number two which - I quibble with numbers effectively - on the prosecution skeleton

argument that Mr. Tansey has been arguing from that was number two.

I turn to 3, 4, and 5 which I deal with together. They object to evidence of Smith’s membership of

the Communist League and the Communist Party, employment by EMI, and in 1976 doing work on

classified material, his efforts to regain security clearance and evidence of lies that he told. The

Crown put all that forward as part, they say, of the pattern of somebody who is recruited as an

agent who should, in fact, relatively quickly thereafter disassociate himself from any left-wing

organisation in case the authorities should consider he might be somebody who might be prepared to

disclose information to the USSR.

They say that the pattern again is in some ways, with the work on classified material similar to Mr.

E’s, but I am bound to say that the evidence there is not precise.

They equally say that his membership of the Communist Party coupled with his lies would enable the

jury to draw the inference that his political views play a part in the motive he had before giving

information to the U.S.S.R.

Mr. Tansey submits that this is too tenuous, it is too prejudicial; people do change their political

views and he has cited several well-known examples: people who were members of the Communist

Party for a short time and have changed to another party, and people who have changed from one

party to another one in this country. There are many people who have done so, and that is a

perfectly valid point but, in the circumstances of this case, it is open to the Crown to put forward

evidence of motive borne out by the defendant’s actions and in my view this evidence is admissible.

Who is to say what weight it will carry in the long run.

The only limitation that I have put on the Crown which they agree, is that in general terms the jury

are entitled to be told that in 1976 he worked on classified material. The precise ambit of what

evidence can go before the jury on that is not a matter that I am ruling on at this moment. Clearly, it

is the fact that he sought work on classified material and did find work that is important. Whether it

is relevant to know precisely what work it was can be argued at the appropriate stage, which is not

now.

Finally, I turn to item 6, evidence of Mr. Smith’s visit to Oporto, to the map, the marked map found

in his home. This, coupled specifically with Mr. E’s evidence of a trip to Lisbon in Portugal, Mr.

Tansey submits that the evidence of the marks on the map are far too tenuous. Further evidence has

recently been served about this which the defence team have not yet had the opportunity to fully

investigate. He, therefore, wishes to make further investigations and to raise the matter again.

I am quite prepared to accept that this is a proper view to take and I do not formally rule on the

Tradecraft map as yet until Mr. Tansey, or those who instruct him have got full instructions about

that.

It therefore follows, as I see it, that if that cannot be resolved before the trial is opened, that the

evidence of Mr. Smith’s visit to Oporto and the existence of the map found in his house, and the

questions about it may well have to be left out of the opening; but that depends to some extent on

whether this trial gets underway.

*******************************

THE CENTRAL CRIMINAL COURT

Old Bailey,

London, E.4

Thursday, 8th July 1993

Before:

THE HONOURABLE MR. JUSTICE BLOFELD

REGINA

MICHAEL SMITH

_____________

SIR D. SPENCER Q.C. (The Solicitor General) and MR. J. KELSEY-FRY appeared

on behalf of the prosecution.

MR. R. TANSEY Q.C. and MR. G. SUMMERS appeared on behalf of the

defendant.

_____________

Computer aided transcript of the palantype notes of D.L. Sellers & Co.,

(Official Palantypists to the Court)

10 High Street,

Leatherhead,

Surrey KT22 8AN

(IN CAMERA PROCEEDINGS NOT TO BE DISCLOSED WITHOUT THE

AUTHORITY OF THE COURT)

Thursday, 8th July, 1993

(In camera)

MR. JUSTICE BLOFELD: Tradecraft is next, is it?

THE SOLICITOR GENERAL: My Lord, that relates to the evidence of Mrs. C and Mr.

Gordievsky.

MR. JUSTICE BLOFELD: I think it might be helpful if you dealt with your two remaining points,

tradecraft and Mr. E as you are addressing me at the same time.

THE SOLICITOR GENERAL: Yes. My submission is that body of evidence - Mrs. C, Gordievsky

and Mr. E - should be heard in camera because to disclose it would be prejudicial to national safety

because it would disclose the inner workings of the Security Service and, in particular, how agents

are handled and the techniques of the Russian Intelligence Service and its predecessor. In our

submission this evidence involves laying bare a storehouse of knowledge about the tradecraft of

hostile intelligence agencies.

My learned friend has made it quite plain that the issue in regard to tradecraft is, or maybe: does this

tradecraft signify that the defendant was dealing with the Russians, or is this tradecraft which might

indicate dealing with a large number of other persons? So, this is a very live issue in the case and, as

I understand from what my learned friend has said, it will require investigation in order to deal with

the issue which he has already postulated.

One can envisage questions about how Mrs. C acquired her knowledge, her career and questions

which might indirectly lead to her being identified. In our submission an investigation of that area in

public might lead to significant impairment of the operational efficiency of the Security Services

involving, as it does, an examination in detail of the training and techniques of Mrs. C and people

employed in a similar capacity, and the modus operandi of agent handling by various hostile

intelligence services and disclosure of that knowledge in public would assist those who would wish

to injure the UK.

In our submission it might well tend to identify Mrs. C because details of her professional life and

knowledge might emerge and that might put her life at risk from organisations hostile to this country.

Can I briefly refer the Court to the certificate of the former Home Secretary, dated 28th April,

which I placed in front of the Court on a previous occasion. I refer particularly to paragraph three.

MR. JUSTICE BLOFELD: Have I still got it, or did I hand it back to you? (Copy handed)

THE SOLICITOR GENERAL: On page one he sets out the function of the security services under

the 89 Security Services Act and, over the page at paragraph three, he says in the middle of

paragraph three that normally the work of the security services does not give rise to their appearing

in court and says,

“The disclosure of, or evidence about, the identity of members of the service, including their physical

appearance, could substantially impair their capability to perform tasks assigned to them and could

in the case of past as well as serving members put their lives at risk. The disclosure of information

about the organisation, procedures and capabilities of the service could substantially impair its

operational efficiency. In particular, any disclosure of these matters would be of value to terrorist

organisations and would substantially impair the protection which the security service affords against

terrorist attacks which have in the past claimed so many victims in the UK and elsewhere.”

and then in paragraph four, he deals with various categories and says

“The public interest requires that the following categories of information be protected from

disclosure essentially on two bases: (a) the need to protect the integrity of intelligence operations, (b)

the need to protect the future usefulness of security personnel and their safety.”

and he sets out those categories in paragraph five:

“a. the identities and physical appearance of serving and past members of the security services;

c. all sources of intelligence information;

d. all details of the activities and operations of the security service or other intelligence agencies;

e. any facts which might tend to reveal that.”

In paragraph 6, over the page, in the middle of it, he says, about a third of the way down:

“Where the resources upon which those services rely to gather information are human, the

information is provided in the knowledge that what is imparted is in confidence, and any breach of

confidentiality by the Crown in revealing the identities of those supplying the information would cause

unquantifiable damage. If this position is not maintained, there would be a real and serious danger

that the supply of such information would be less than readily forthcoming and could result in great

danger to those who had supplied or might in future supply it.”

Later on in the certificate, particularly in paragraph 8, it says that he does not object to certain

classes of information being given as evidence in this case but subject to the seven safeguards, the

safeguards being set out in paragraph nine:

“In particular, the evidence and material referred to should be given or produced only in redacted

form so as not to reveal information, disclosure of which would be damaging to national security.

Further that serving or past members of the Security Service called to give evidence should be

permitted to give evidence in such a way that their identity and physical appearance is not

disclosed.”

The effect of what appears there, in my submission, can be looked at under two heads. One is the

operational efficiency and effectiveness of the Security Services in general, and the second is more

specifically the identity of Security Service personnel or persons who have had connections with the

Security Services at sometime or another.

If I might just deal with the position of Mr. E. Your Lordship will have seen the statements that he

has made. He is quite adamant ----

MR. JUSTICE BLOFELD: Who?

THE SOLICITOR GENERAL: Mr. E. Mr. E is quite adamant that he does not want his identity to

be disclosed. He says so in plain terms in the statement. He naturally was dealt with by the Security

Services in confidence.

MR. JUSTICE BLOFELD: Yes, may I tell you the problem that somewhat concerns me, although I

do not think it is absolutely at the forefront. Mr. E is an American.

THE SOLICITOR GENERAL: Yes.

MR. JUSTICE BLOFELD: Disclosure of his identity might well be prejudicial to American security.

Is that something we have to take into account, or is it just the national security of this country?

THE SOLICITOR GENERAL: This country, but one cannot overlook damage that might result to

the Security Services in this country if the courts take decisions which cause friction between the

smooth working that normally occurs between our Security Services and those of the United States.

MR. JUSTICE BLOFELD: So, you say there would be a knock on effect.

THE SOLICITOR GENERAL: There would be a knock on effect, in my submission. The Court

knows how Mr. E came into the hands of our security service in the first place and what one, in my

submission, must keep very well in mind is the position of the United States Intelligence Service in

regard to Mr. E’s arrival under the control of our Intelligence Services.

My Lord, in relation to the question of concealing identities, there is some law, part of which has

already been referred to in Att.Gen. v. Leveller Magazine, part of which has been referred to, and is

----

MR. JUSTICE BLOFELD: Well, the bit Mr. Tansey referred to me from R. v. Socialist Worker

has also got to be considered too, saying that it is much less to keep the name private than to

exclude the public.

THE SOLICITOR GENERAL: It is quite plain from Att.Gen. v. Leveller Magazine that the Court

contemplated that the magistrates would have been well within their power ----

MR. JUSTICE BLOFELD: This is specifically within the Court’s power in this case because it is

specifically dealt with in the Crown’s Court Rules. Whereas the magistrates arguably did not have

jurisdiction, here there is no doubt at all that I have jurisdiction if I am satisfied that it is for the

protection, “or for the protection of the identity of a witness”; those are the words.

THE SOLICITOR GENERAL: Indeed, it is not only national security but the protection of the

identity of a witness.

MR. JUSTICE BLOFELD: It is much wider than the national security.

THE SOLICITOR GENERAL: It is indeed, and in Att.Gen. v. Leveller Magazine at page 458,

which is the last page of Viscount Dilhorne’s judgement, at the top paragraph between A and B:

“Judges and Justices have a wide measure of control over the conduct of proceedings in their courts.

On occasions for a variety of reasons witnesses are allowed to write down a piece of evidence

instead of giving it orally and I know of a number of occasions when in Official Secrets Act cases

witnesses have been allowed to conceal their identity. In my opinion it is within the jurisdiction of the

court to allow this in the exercise of control over the conduct of the proceedings just as a judge is

entitled to send a jury out in the course of a trial and to have a trial within a trial.”

But, there is more recent authority about the circumstances in which a Court may make an order that

the identity of a witness to be concealed, and that is a power in the exercise of the Courts general

jurisdiction to see that justice is done and not pursuant to a power under the Official Secrets Act, or

even under rule 24 (a), and it is referred to in the case of the Watford Justices which is available in

transcript. I think we have made it available to your Lordship. That was decided on the 7th May ---

MR. JUSTICE BLOFELD: Yes, I have got it.

THE SOLICITOR GENERAL: ---- last year. It was a case which involved public disorder in the

High Street at Watford, or some such place, and the witnesses were frightened of the suspects and,

when they came to give evidence, as we see at page two, letter D, screens were provided at court

and a voice distortion equipment was provided so that the anonymity of those witnesses could be

preserved.

MR. JUSTICE BLOFELD: I have read this one. This seems to me to come much more in a way

with either, not so much covering up the identity of a police informant but covering up the positioning

of police posts when they are trying to prevent criminal dealings. There is a case about police

watching an area where there is wide scale distribution of drugs not wishing to disclose it for fear of

retaliation to those whose premises have been allowed to be used by the police.

THE SOLICITOR GENERAL: I would submit that analytically there is a difference but in the case

that your Lordship has just posed, that raises questions of public interest.

MR. JUSTICE BLOFELD: Yes, and so does this.

THE SOLICITOR GENERAL: This case gives the court inherent power to control its own function

within the court but it is motivated by the same desire to have an effective regime so that justice can

be done notwithstanding outside pressures, and results in the same concealment of a witness’s

identity that the court would have quoting the case of X, Y and Z which was a decision based on an

original ruling by Judge Pigot that in child abuse cases screens could be erected so that the witnesses

could give evidence unseen.

MR. JUSTICE BLOFELD: You are not proposing in this case that either Mr. E or Mrs. C should

give evidence with voice distortion ----

THE SOLICITOR GENERAL: Nothing of that nature at all. I am just citing it as authority for the

principle.

MR. JUSTICE BLOFELD: ---- or with screens, or have you not made up your mind.

THE SOLICITOR GENERAL: I want them to give evidence in camera - that will mean that only

the parties to the proceedings will be here - and, as I am instructed at the moment, that will be

sufficient protection.

MR. JUSTICE BLOFELD: Yes, thank you.

THE SOLICITOR GENERAL: A matter has been clarified my Lord since I last raised it and I must

qualify what I have just said. It will be my requests that in addition there should be screens.

MR. JUSTICE BLOFELD: For both Mrs. C and Mr. E?

THE SOLICITOR GENERAL: For Mrs. C and for Mr. E and for Mr. B. Mr. B deals with another

aspect of the case, namely, the ’phone call. That is my information.

MR. JUSTICE BLOFELD: Although I raised this, Mr. Solicitor, I do not think those matters

actually come under order 24 (a).

THE SOLICITOR GENERAL: No.

MR. JUSTICE BLOFELD: You are really putting Mr. Tansey on notice should you succeed in this

application.

THE SOLICITOR GENERAL: I would like to examine that closely and deal with each case on its

merits. I will give you clear warning well in advance.

MR. JUSTICE BLOFELD: I do not think that is something I should incorporate in any decision I

make today. At the moment I think really we will concentrate on tradecraft and the identity of Mr. E

which are the two matters before me. Those really are your submissions on that. I have got them

then. Mr. Tansey.

MR. TANSEY: I do not really understand why the evidence-in-chief at least of Mrs. C and

Gordievsky cannot be given in open court. It certainly, may I say, is no part of our case to try and in

any way establish the identity of who Mrs. C is. That is not our concern. The case the Crown calls

effectively that this is KGB tradecraft - that is the key of their evidence - and to that there is an issue:

is it, or is it not K.G.B. tradecraft? The question your Lordship has to ask, and I go back to the

same question, is this: how would the evidence of Mrs. C and Mr. Gordievsky and Mr. E be

prejudicial to the national safety of England?

MR. JUSTICE BLOFELD: Would you like the Solicitor General to answer that before you develop

your submissions because, if you do not follow it, it is difficult for me to follow your submissions.

MR. TANSEY: It would seem that much of what he said was going to how he anticipated my

cross-examining as opposed to the actual key.

MR. JUSTICE BLOFELD: Well, I do not know about that. (To the Solicitor General) Can you

help about that?

THE SOLICITOR GENERAL: Because it shows the internal workings of the Security Service.

MR. TANSEY: Again I pose the question: as one reads the statements: what does that mean? “It

shows the internal workings of the Security Services.” It really is, with respect, nonsense. I say that -

I do not mean to be rude - but all we know is that Mr. Gordievsky and in particular that he - that

certain Tradecraft was used; secondly, that he then came and spoke to the Security Services and

they debriefed him. What is it that is said is so special? It is elementary. Police Constables debrief

with their senior officers in a simple little case. So, what is it that is secret in that way? I do not

understand what it is about a debriefing, finding out what is happening, that actually exposes how the

Security Services work. It is so obvious that it has got nothing to do with the inner secret mechanism

of how the Security Service operates, and that is why I put to your Lordship that, if your Lordship

looks at the evidence ----

MR. JUSTICE BLOFELD: Let us have a look at the statement of Mrs. C, which is what page?

MR. TANSEY: Does your Lordship want to read E’s too?

MR. JUSTICE BLOFELD: No, I was looking at Mrs. C’s. I have read it a number of times. It is at

page 62 onwards.

MR. TANSEY: It starts at page 62, yes. “I have made a study of the check-list operation ----

MR. JUSTICE BLOFELD: Do not read it out loud. I am sorry, Mr. Tansey, I am not trying to be

difficult, but it is a lengthy statement. It is showing detailed knowledge of, she says, K.G.B.

tradecraft or, in any event, the Soviet Russian Intelligence Service tradecraft. Which page is Mr.

Gordievsky?

MR. TANSEY: Page 188 to 227.

MR. JUSTICE BLOFELD: Thank you.

MR. JUSTICE BLOFELD: Yes, I have reminded myself of that.

MR. TANSEY: There is little there that tells anybody anything other than what one already knows

about the Secret Security Services of this country.

What is there - I put it rhetorically - what is it that the prosecution are seriously saying from this that

discloses how the Secret Services work? All that we know is that a number of people have been

arrested. They have used K.G.B. tradecraft - that is what the evidence suggests - the various signs

that they use. My Lord, that does not disclose the inner sanctum of the Security Services at all, and

so that is why I keep on coming back and asking the question: what does this do to expose the

operations of the security services?

My Lord it is not meant to be a rhetorical question, but everything here is descriptive of effectively

what has been established by the Security Services of K.G.B. tradecraft over the years. So, if the

prosecution are saying that is prejudicial to the national safety, well that really is a remarkable

proposition, and I put forward that for this reason: Gordievsky in 1985 was the greatest defector of

the time and, therefore, everybody in the K.G.B. knows that he was a defector and a K.G.B. man,

so they are well aware that, obviously, he has been debriefed and given as much information as

possible; was frequently on television ----

MR. JUSTICE BLOFELD: If you are meaning by that his masters know that it is extremely likely

that the western powers know everything that he knows now - if you are making that point, that

seems as obvious to me as it does to you.

MR. TANSEY: Yes, and vital to this is Oschenko: the same principle. What we can say is that

statements of Mr. Gordievsky and Mrs. C describe the K.G.B. tradecraft. Well, the Russians know

that our Security Services know this already by the defection, and that is why I say it is so well-

known to the Russians that this has all inevitably been exposed to the Security Services in this

country, how, therefore, can it possibly be prejudicial to the national safety to have this put out in

open court and the Crown has not answered that, has not even set up that proposition, and that is

why I keep on saying I do not understand how they put it. That is my first point. There is no way

that this evidence, as it stands, would prejudice the national safety. That is the first point.

Secondly, the tradecraft in this case, as your Lordship has heard, is frequently set out in various

novels and books.

MR. JUSTICE BLOFELD: Tradecraft is; whether it is Russian tradecraft I would not know.

MR. TANSEY: Yes, I agree and, of course, the really accurate and totally precise tradecraft is what

Oschenko (…inaudible…), and the third point, national security of the K.G.B. Well, the cold war is

over, the USSR has gone; Russia is not an enemy of this country, and, consequently, the best

evidence of that is the defence estimates of which your Lordship is well aware and so the question I

ask ----

MR. JUSTICE BLOFELD: Well, there is a suggestion in this case that however you define Russia in

relation to this country, Russia is still in the business of gathering information for its own use from

sources in this country to which it would not be entitled if it applied openly for it. I do not necessarily

say that makes it an enemy; it certainly makes it an inconvenient friend.

MR. TANSEY: My Lord, yes, but inconvenient may be putting it at its highest. That is insufficient. It

has to be “would be prejudicial to the national safety”, you see, and that is why I say that test as set

out in section 8 (4) is a very high test that this is prejudicial to the - “would be prejudicial to the

national safety”, and therefore the fact that Russia is no longer - the cold war is over - is no longer

deemed to be an enemy of this country ----

MR. JUSTICE BLOFELD: I do not think I read the phrase in such a narrow way as you do Mr.

Tansey.

MR. TANSEY: It is put to me that it “would be prejudicial to the national safety”; “safety” is the big

word - the “safety” of this country - and that means safety from attack or being undermined. Clearly,

those are important words. My Lord, therefore, one has to look at it in the context of today, in my

submission, because your Lordship is ruling when this trial occurs, can this evidence in the normal

way ----

MR. JUSTICE BLOFELD: I do not think it is as simple as that, but you are really saying, to take as

I can see an extreme example, that anybody who disclosed information to a known friendly State -

let us say the United States of America, for want of looking further - that could never be kept quiet

however sensitive the information because it never would be prejudicial to the national safety. I do

not think I necessarily agree. I think it could be prejudicial to the national safety for a whole variety

of different reasons. It might get out into the open and people, not necessarily those who received it

in the United States of America, might be going to prejudice our national safety by the fact that it is

out in the open; third parties might.

MR. TANSEY: That is only looking at that part of it in that way but, ultimately, the question that we

come back to in our submission this is: in this case is publicity being given to K.G.B. tradecraft and

the fact that this had been exposed? The Crown has to show to your Lordship to a very high degree

that as such would be prejudicial.

MR. JUSTICE BLOFELD: I should say straight away, Mr. Tansey, so that the Solicitor General

knows this, this aspect of the case I find more worrying and troublesome than I did the scientific

decision which I have already made. I can see the force in what you put in this and it does trouble

me.

MR. TANSEY: It may be my Lord that when I cross-examine at certain points he may say, “I

object to that point”, and therefore he may then argue we should go into camera. That could arise.

That I would not dispute. But, what your Lordship has to rule on is the evidence as it stands at

present, whether that evidence should be heard in camera. My Lord, that is why I say that the

evidence that we read in the statements of Mrs. C and Mr. Gordievsky do not come within the

criteria of section 8 (4). I do not want to keep on repeating the proposition.

MR. JUSTICE BLOFELD: No, I have got your general point.

MR. TANSEY: If the Solicitor General does come up with certain additional approaches if your

Lordship would allow me to reply.

MR. JUSTICE BLOFELD: Yes, all right.

MR. JUSTICE BLOFELD: Mr. Solicitor, I am a little troubled by this. It does seem to me that what

Mr. Gordievsky has disclosed is now old hat. I am a little puzzled to know really - I can see

something might come out in cross-examination; I cannot see how what is going to come out in the

evidence-in-chief is going to be prejudicial may I say. I put Mr. E in a slightly different category

because I can see that his identity might prejudice him. He, after all, on the face of it, whether or not

he can ever be described as acting as an agent for a foreign power, having read his statement, I am

not going to make up my mind about but it is certain that at the same time he was informing the

American Security Services, in doing that it is namely to disclose - I know Mr. Tansey has not yet

dealt with - but I can see that you might be open to some difficulties if not dangers, but I am little

troubled by Mrs. C and Mr. Gordievsky in-chief.

THE SOLICITOR GENERAL: Mrs. C’s evidence, as it stands on paper, in my submission

demonstrates that she is a highly qualified expert in the field of Soviet tradecraft. So it is how she has

acquired ----

MR. JUSTICE BLOFELD: It is very general. Page one is extraordinarily general. Page one does

not - there does not seem to be anything much in page one that is her introduction really.

THE SOLICITOR GENERAL: It is not, with respect, because the true chronology required, if one

can go to the later statement that she made at one 181 and 278 ----

MR. JUSTICE BLOFELD: All right.

THE SOLICITOR GENERAL: 181 and 186. 186 is the first one in chronological order.

MR. JUSTICE BLOFELD: Yes I see.

THE SOLICITOR GENERAL: This deals with her background in the Security Services, when she

joined, which section she worked in and how she has been involved in debriefing a number of Soviet

defectors, her part in researching and preparing a number of Official Secret Act prosecutions, head

of a particular department and between 1990 and 1993 returning to the department that she

originally joined, which was the one that deals with studying the operational methods and techniques

of intelligence services of countries hostile to the UK.

If that does not show, in my submission, the risk of laying bare the whole of this country’s Security

Service effort in trying to acquire knowledge of and then devise methods to counter hostile

intelligence it is difficult to think what does. It is fairly and squarely on that point. She goes on at the

foot of page 6:

“Despite the lessening of tensions of the Russian intelligence, gathering operations continue

unabated”.

and, indeed, it is an important part of this case that they were going on in August last year and, but

for the defection of Mr. Oschenko, the defendant would have passed over this material in Harrow

on the Thursday before his arrest. That is what she says at 181.

MR. JUSTICE BLOFELD: Yes. You really rely upon when she says,

“This is particularly true in the science and technology field where classification of individual pieces

of information is not necessarily a true reflection of their work in the community”.

and that is a small and exceedingly innocuous piece, to give that evidence?

THE SOLICITOR GENERAL: Yes, the jigsaw piece.

MR. JUSTICE BLOFELD: Yes, I follow the way you are putting it. What about Mr. Gordievsky

then?

THE SOLICITOR GENERAL: Mr. Gordievsky gives extremely detailed evidence and will do on

oath and will, therefore, authenticate on oath his knowledge of Soviet tradecraft and give the most

detailed concrete examples, or deal with the specific concrete examples in the course of this case.

MR. JUSTICE BLOFELD: If they were given in public why would that prejudice national security?

THE SOLICITOR GENERAL: Because it would demonstrate to other hostile intelligence agencies

the extent of our knowledge about Soviet tradecraft at the material time.

MR. JUSTICE BLOFELD: The point that Mr. Tansey is making is that once it is known that Mr.

Gordievsky has come over to the west the assumption is that everything he knows has been gleaned

by the west, so it is not telling those who might be enemies of this country any more than they

strongly suspect already.

THE SOLICITOR GENERAL: In my submission that is not the point. The point is what is the likely

prejudicial effect of his giving evidence on oath in this Court, and the consequent publicity from

widespread publication of his evidence. It would demonstrate to other hostile intelligence agencies,

not the K.G.B. of which he was a member, but other hostile intelligence agencies, the extent of our

knowledge about the Soviet tradecraft which may well be of use to them. It would taken together

with Mrs. C’s evidence demonstrate the depth and extent of that.

MR. JUSTICE BLOFELD: I see how you put it, in which case I have got the point. All right, Mr.

Tansey, that has clarified what I wanted to know. I hope it has for you too.

MR. TANSEY: Yes, my Lord. So far as Mr. Gordievsky giving evidence, Mr. Gordievsky is a

regular contributor about K.G.B. and Soviet-West relations in television and newspapers. In fact,

only a month ago, or something like that, he was writing a letter to the Evening Standard. So, this is

a man who is constantly in the public limelight seeking publicity, writing books, not under a

pseudonym but under his own name, and all the time is writing about USSR and tradecraft

techniques. He is a man for whom publicity is the essence of his life and, consequently, we submit

that everybody knows who is interested, and I stress who is interested, that Mr. Gordievsky must

have spilt the beans about K.G.B. tradecraft to MI5. Everybody knows that because that is the

essence of it and the way he talks about USSR, his escape, the circumstances of his escape, how

good it is to be in this country, he actually wrote a letter to the Evening Standard which I have not

got, saying how good he thought MI5 and MI6 were. That is fair enough, but there he is up front the

whole time, and it is to everybody who is in any way an enemy of this country that Gordievsky of the

K.G.B. has spilt the beans.

Oschenko, Victor Oschenko, when he defected received massive publicity, and it is obvious to

everybody here was a very big K.G.B. defector, and what we submit is that it is elementary that

every Secret Service operating in the United Kingdom and with an interest in these matters must

know that all the beans had been spilt by the K.G.B. and their tradecraft techniques. That must be

so. There is no other way of looking at it. If these were quiet defections then I could understand the

point. These are not quiet. These are big publicity, massive publicity when these two came because

Russian agents were expelled from this country shortly thereafter as a result of information. So,

everybody knows this. So, that is why I put to you your Lordship; it really is a most unsatisfactory

answer to say other hostile agencies would know the extent of Soviet tradecraft. It really is, in my

submission, a weak attempt to try and get this matter to be heard in camera when there really is no

justification.

My Lord, may I just deal with Mrs. C’s statement, and it seems that what your Lordship felt carried

weight was the particular piece on page 187. Namely, those sentences: “Intelligence gathering” ----

MR. JUSTICE BLOFELD: No, it was not the one piece. I thought that was the bit that the Solicitor

General was in his way emphasising, besides reading it out, because it seemed to encapsulate what

he was saying.

MR. TANSEY: It is like completing a jigsaw. It is elementary. I say it again: it is elementary. Every

little bit we get you are picking up the whole thing. Everybody knows this. There is nothing official,

secret about this. That is the test. I keep on saying that is the test. It has to be something which really

is a secret, and our submission is that when one looks at the statement of Mrs. C and Mr.

Gordievsky that just does not come within the definition and, may I make it quite clear, my Lord,

there is no question at all on our part, and I do not seek in any way to attempt to identify Mrs. C -

that is utterly right as far as we are concerned. My Lord, the key to it is whether one can really say

that this information, this evidence should be given in camera.

My Lord, the proper in camera proceeding is in itself very prejudicial so far as the defendant is

concerned, because the jury feels overweighed and burdened and wondering why is it that everyone

is excluded - it does not happen in big, murder cases, it happens in these cases - and that is

prejudicial to the defence as soon as it starts off. That is why it should, therefore, only be permitted

only when it is absolutely essential and necessary.

My Lord, our submission goes to this particular evidence which is well in the public domain,

everybody knows it; the K.G.B. know it, the enemies of the K.G.B. know it and, of course, one

knows as a matter of general knowledge the K.G.B. is selling secrets all round the world; that is

what it is doing; it is going all round; its agents are working everywhere; there is nothing special or

secret about it and, for that reason, my Lord I would submit to your Lordship that the case allowing

this evidence to be given in camera within section 8 (4) just has not been made out.

MR. JUSTICE BLOFELD: What about Mr. E?

MR. TANSEY: Can I come to him then at this stage, because in his case there is a different issue as

well.

MR. JUSTICE BLOFELD: There is a different issue.

MR. TANSEY: My Lord, there is one question of his identity, whether that should be disclosed,

and then there is the question of the tradecraft and, my Lord, I think the tradecraft proposition

basically is the same for him as for Mrs. C although it is on a small much smaller basis as such. But

the key to Mr. E is whether or not the defence is going to be denied knowing his identity. My Lord,

his evidence is important, as your Lordship knows, for four reasons. They say (1) he was, Victor

Oschenko was a K.G.B. agent - they prove it through him, but not exclusively him - (2) that

Oschenko recruited, or tried to recruit, Mr. E; (3) that it was Victor Oschenko or his successor sent

him to Portugal and (4) under Victor Oschenko or his successor requested him to get involved in

companies to get electronic information. That seems to be a summary of the key aspects of his

evidence, and the prosecution seek to adduce that to establish a system that, just as he was

recruited, likewise, a relatively similar system to how this defendant was recruited, in Portugal, etc.

His evidence, therefore, is clearly very important to the prosecution case.

If the defence, and further may I say he, it seems, was not an MI5 officer. He was a person who

gave information, as seen from the statement, first to the US Embassy and then to the Security

Services over here for a period of four years - that is all we are effectively told - and one of the

questions we have to ask is: is this man a credible person? Is he a reliable person? When he gives

his evidence of what he did and, if your Lordship allows him, evidence of what was said between

him and Oschenko, is he telling the truth and is he reliable? Does he have a good reputation as being

an honest man? Does he make things up? Is he a Walter Mitty or a sort of James Bond? What sort

of person is he?

Now if, in fact, we knew his identity, all these matters the defence could check. They could get an

enquiry agent to enquire, as far as one possibly could, about the whole of his background and

establish whether or not there was any weakness in his character, or his integrity, or his reliability.

But, by giving him anonymity, the defence is denied the fundamental pre-requisite of establishing

whether this person has a good or a bad reputation for honesty and reliability and, my Lord,

therefore, the question your Lordship has to consider is: is it right that this defendant should not

merely have matters heard in camera but be denied knowledge of who this person is?

MR. JUSTICE BLOFELD: You have presumably asked for whether he has any previous

convictions?

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: And that information has not been denied to you, whatever the answer?

I do not know what the answer is.

MR. TANSEY: I do not know the answer, but I gather he has no previous convictions. But, my

Lord, the fact that somebody does not have previous convictions is, as the Courts well know, no

proof as to their integrity, or their reliability. It may be some prima facie evidence of character, but

it is not in any way conclusive, and people of dishonest and bad reputations do come to the courts in

their thirties, their forties for offences of dishonesty. My Lord, may I just therefore ----

MR. JUSTICE BLOFELD: What realistically are you saying you would hope to dig up on him, Mr.

Tansey? I am trying to think of a hundred and one cases. I find it a little difficult. I mean, I agree

entirely theoretically if you knew who he was and where he lived you might conceivably alight upon

a next door neighbour who did not care for him at all and who says he has got a very bad

reputation.

MR. TANSEY: Or a colleague who would say, “You cannot trust him; the man is an inveterate,

pathological liar; he makes things up; he tries to make himself sound bigger than he is.” We just do

not know, we just do not know where he stands. Your Lordship has seen this rather tarnished copy

of R. v. Murphy and Maquire, the Northern Ireland case.

MR. JUSTICE BLOFELD: Yes, I have.

MR. TANSEY: The reason your Lordship has it ----

MR. JUSTICE BLOFELD: Yes, page seven; it is all underlined.

MR. TANSEY: I do not know whether I need to refer your Lordship to what the case is about, but

it referred to two judgements ----

MR. JUSTICE BLOFELD: I said page seven at the bottom, it is page nine at the bottom.

MR. TANSEY: Your Lordship has seen it and six lines from the top:

“In S. v. Leepile and Others (5) the court declined to give a direction that the true identity of the

prosecution witness be withheld from the defence.”

The reasons are there clearly set out and what he says is,

“No investigation could be conducted by the accused’s legal representatives into the witness’s

background to ascertain whether he has a general reputation for untruthfulness, whether he has made

previous inconsistent statements ...”

To that we are entitled.

MR. JUSTICE BLOFELD: You know he has not made a previous inconsistent statement because

you have been given it.

MR. TANSEY: I accept that the Crown has given us that material, my Lord,

“… nor to investigate other matters which might be relevant to his credibility in general.

It would be more difficult to make enquiries to establish that the witness was not at places on the

occasions mentioned by him.”

MR. JUSTICE BLOFELD: Apart from, in fact, the possibility that you might find somebody who

was associating with him who said he was totally unreliable, that is really your bald point.

MR. TANSEY: My Lord it is basically that, but I hope it is not just a question of looking to find a

neighbour, it is effectively to say, for example, “You are a man who nobody can believe a word you

say; you did this; you did that; you said that; look at this document; look at this letter you have

written; you make up things” - that sort of material. Now, whether it exists or not we do not know,

but what we are denied is the opportunity to establish whether such material does or does not exist.

MR. JUSTICE BLOFELD: I find it remarkably difficult to understand, in view of the nature of your

case, which is all the information that was in fact handed over to a trade rival who worked in

(inaudible) commercial area, how it matters a row of beans to your defence whether Mr. E was a

genuine agent or a cover agent or not. I just do not really see how attacking him helps your defence

at the moment.

MR. TANSEY: What the Crown seeks to do is to use his evidence, and it came late in the day, to

prove two matters against us: (1) that Victor Oschenko was operating in the United Kingdom trying

to get hold of people to give information to the K.G.B. That is number one. Is that the truth or not?

MR. JUSTICE BLOFELD: Well ----

MR. TANSEY: My Lord, again rhetorically, that is the question; that is what he says. Secondly ----

MR. JUSTICE BLOFELD: Well, I thought you were just saying it was accepted he was a K.G.B.

agent who defected. If he is a K.G.B. agent I would have thought it follows as night follows day that

he is trying to get information for his country.

MR. TANSEY: If the Crown call Oschenko ----

MR. JUSTICE BLOFELD: There may be a hundred and one different reasons why they cannot call

Oschenko.

MR. TANSEY: I accept that, but that is the way they can give direct evidence. They are not taking

that course. They take an alternative course at a late stage. That is to call this man whose identity we

do not know to give the evidence that they would like Oschenko to give.

MR. JUSTICE BLOFELD: What puzzles me is I cannot see how it furthers your defence to

challenge Mr. E and say he is making it all up. I cannot see how it gets you any further.

MR. TANSEY: because without him the Crown - well, in two areas - (1) was Oschenko operating

as a K.G.B. person in this country. How can they prove that by this evidence? Secondly, the

Portuguese drop him an important part of the tradecraft technique which they are seeking to put into

the context of the defendant’s trip to Portugal in the late 1970’s. That is why his evidence is so

important. The Crown are using it to fill the gap of Mr. Oschenko and, my Lord, therefore it is not a

peripheral matter; it is a central matter and, therefore, is this man reliable and an honest person? That

is the key. We do not know and we are denied the opportunity of even (inaudible) and, my Lord,

that in our submission is what is so unacceptable about this evidence.

MR. JUSTICE BLOFELD: Have we not got a document to show that Mrs. C was in contact with

the American services from an earlier stage?

MR. TANSEY: My Lord, there is reference to that in the statement.

MR. JUSTICE BLOFELD: I thought there were some documents that had been disclosed to you

with the names crossed out including a statement supplied by the United States Security Services. Is

that right, Mr. Solicitor? I seem to remember when we were in private, ex-parte, that was a

document that was to be served.

MR. TANSEY: I have a statement from Mr. E dealing with the US. Page 282.

MR. JUSTICE BLOFELD: No, no, I am talking about documents that were supplied.

THE SOLICITOR GENERAL: Yes, they have been supplied.

MR. JUSTICE BLOFELD: I have a distinct recollection, whether it is properly called a de-briefing

document or what it is, it is a statement from the United States Security Service which deals with

their dealings with Mr. E.

MR. JUSTICE BLOFELD: There were three or four such documents.

MR. TANSEY: I can assist your Lordship. Effectively, I have three documents -----

MR. JUSTICE BLOFELD: It was in a bundle and I think it was document 1 (a).

MR. TANSEY: I have three documents; one starts off, “Recruited high-fi salesman, an American

living in Britain”, that is the evidence ----

MR. JUSTICE BLOFELD: Yes, I thought there were four. I really cannot remember.

MR. TANSEY: I have three.

MR. JUSTICE BLOFELD: It may be there were only three; I cannot remember if there were 3 or

MR. TANSEY: May I just check. We have three documents. I have just received a fourth which I

have not seen before.

MR. JUSTICE BLOFELD: You have not seen before.

MR. TANSEY: I have not seen this one before, no.

THE SOLICITOR GENERAL: That was 1(a), I think.

MR. JUSTICE BLOFELD: That was 1(a). My recollection, Mr Tansey, it does not contain much

more information than your other three documents, it is just that it comes from a different source.

MR. TANSEY: There is a certain amount of information, without any specific detail being given, in

those three documents. I accept that. My Lord, despite that, what we have been given: we are being

given documents from the Security Service, effectively, and what we want to do is to check this man

out for ourselves. Why should the defence have to rely completely upon the Security Services when

they are calling and take the statement, or assist in taking of a direct statement from this particular

person, and, my Lord, this is where ----

MR. JUSTICE BLOFELD: You are saying for all you know he might be a stool-pigeon and totally

bogus?

MR. TANSEY: It could be, or what he is saying now is not the truth. He may have been okay at

some stage but no longer a truthful witness when one is making important statements, and may I

please refer you to the next page, page 8 eight of R. v. Murphy and Maguire, the Northern Ireland

case. It starts about a third of the way down.

“In that case, the State court of trial sustained the prosecutor’s objection to disclosure of the

witness’s correct name and address. On Appeal, this was overruled by the Supreme Court as a

denial of an accused’s right to confront the witnesses against him given the Sixth amendment of the

Constitution.”

This is the relevant part:

“Fortas J. added at page 131: “… when the credibility of a witness is in issue, the very start in

‘exposing falsehood and bringing out the truth’ through cross-examination, must necessarily be to

ask the witness who he is and where he lives. The witness’ name and address opens countless

avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary

inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”

and, my Lord, that effectively is what happens and is happening in this case if the Crown are allowed

to call this important witness in this particular way: the defence right to cross-examination is

effectively emasculated.

My Lord, that cannot be right. That cannot be in the interests of justice. So we say, firstly, that it is

not in the interests of justice and, secondly, it certainly does not give the defendant a fair trial if a

witness can give evidence in this way. We say, further, it is not necessary to protect his identity in

this way, because all we want is to be able to investigate. I do not want to have his name in public at

all. That is not the object. The object is to test him as to whether or not he is a reliable and an honest

person. So, in court he could be known as Mr. E for all we care. It matters not. He can be screened

from the public if that is necessary.

MR. JUSTICE BLOFELD: You cannot investigate him without it becoming known that he is

investigated.

MR. TANSEY: My solicitors would have to carry out investigations. That would be their

responsibility. But as far as the usage, that usage would be limited to being able to cross-examine

him and it may be that nothing emerges; but in court, whatever the protection the Court felt

necessary for him, if the court felt it necessary, then we would obviously be sympathetic towards

that approach; but that is why we say the key to it is to allow us to be able to check him to see

whether or not he is honest and reliable and, having got that, then the Court is in the best position of

all to protect him thereafter from screening and, if necessary, if your Lordship felt that the only way

to protect him was to be in camera, then so be it; if that was the only way to protect him, we could

not and would not object. But, at this stage, we cannot do justice in cross-examination of this

particular witness.

Your Lordship, it seems that this witness lives in the United Sates. There is no way that we would

seek to adduce any evidence at all to disclose where he lives and his whereabouts. My Lord, it is a

large and enormous continent and his ability to be there without being detected would be extremely

high; so, my Lord, the opportunity for this person, having given his evidence in this country, to return

to the United States - if that is where he is still lives - is there and the protection that he would have

is available to him and the risk would be very limited; and furthermore that Oschenko has defected.

So, Oschenko is the man in question. He has come over. Mr. Oschenko is not going to touch him or

do any harm to him. So the actual risk in question of harm to this person are in our submission really

nil. One can understand, as I do, that he must feel anxiety. I do understand that. But, my Lord,

despite that understanding, the only way that we can do justice to this defendant in respect of the

witness is to know who he is, where he lives and the chance to carry out these checks and I rely

very much upon what Fortas J. added in that particular case.

MR. JUSTICE BLOFELD: Thank you very much. Mr. Spencer, what do you say about Mr. E?

THE SOLICITOR GENERAL: The fears that have been advanced by Mr. Tansey about the

prejudice that may result to the defendant’s case if he is not allowed to have evidence of the identity

of Mr. E in order to check him out, see what his credibility is, in my submission, are that these are

just as hypothetical on the facts of this case as they were said to be by the divisional court in the

Watford Justices case.

One has got to look at the thing realistically. We have supplied - putting it more accurately your

Lordship made an order having done the P.I.I. balancing test, that certain documents relating to Mr.

E be disclosed to the defence, and that has been done. They relate to his debriefing, what he said on

occasions and the defence have also been supplied with the documents from the debriefing of

Oschenko. So, they have been supplied with the body of evidence which enables them to test his

veracity to a significant extent, and your Lordship has in your Lordship’s hands the capacity to deal

with one of my learned friend’s complaints which is put on the basis he may have been a Walter

Mitty character, he may have been giving the Security Services the run around when he was in

contact with them in this country all those years ago.

Your Lordship has had access to the file, seen how it has been handled on a number of occasions

by Security Services contacts and, if there was any evidence in the file to support that, then it would

have been open to the Court doing the balancing test to make disclosure. We for our part were

astute to try and see if there was anything because we did not want to be in the position where we

advanced the witness as being credible and find out he is not.

In my submission there is no such further evidence on the file which would support any case which

the defence might want to make to the effect that this man is totally unreliable; a Walter Mitty

character and not what he was purporting to be. So, that is a further reason why we say that the

criticisms being made by my learned friend about the unfairness said to result to his client are really

hypothetical on the facts of this case. He is being called for the reasons indicated. There is no reason

to believe that he is other than he purports to be; namely, somebody who, first of all, is in contact

with the K.G.B. for a time and then contacted his own country’s authorities and then was put in

touch with our Security Services and worked under the directions of our Security Services for a

period when in contact with Oschenko and his successor.

So, the matter causing concern to the defence has been investigated not only by us but also by the

Court itself and the Court itself having heard all the relevant information, and it is really a matter for

the court, we submit there is no further material which should be disclosed and that the main

complaints are really hypothetical.

RULING

MR. JUSTICE BLOFELD: The Solicitor in this application in camera deals with two further

matters. He submits that all evidence relating to Tradecraft should be heard in camera. He further

submits that the evidence of Mr. E should be heard in camera because that relates to tradecraft and,

coupled with that, he submits that the identity of Mr. E should not be disclosed either in court or by

the Court to the defence.

Again, the Court has to remind itself of the wording of the section 8(4) of the Official Secrets Act

1920, particularly the phrase “which would be prejudicial to the national safety”, but again,

particularly in relation to Mr. E, the Court has to have in mind the wording of the Crown Court

Rules 8 to 24(a):

“Where a prosecutor or defendant intend to apply for an order for all or part of the trial to be held in

camera for reasons of national security or for the protection of the identity of a witness or any other

person.”

So, clearly, those factors apply when I am considering the case of Mr. E.

The Solicitor has drawn my attention to the certificate signed by the Home Secretary, The Right

Honourable Mr. Kenneth Clarke, Q.C. and that detailed document indicates his fears that disclosure

of anything to do with the gathering of information could cause damage, as he puts it “unquantifiable

damage”, and that damage would in fact damage national security.

A certain amount of information has already been disclosed to the defence about tradecraft

specifically in the Court having examined some documents, ex parte, and the relevant part of a

sensitive document which came into the hands of the British intelligence services from a friendly

power which emanated from an unfriendly power, has been disclosed.

The Crown further says that in this sensitive area it is extremely difficult to know whether a single

piece of information, of itself apparently innocuous and incidental, might enable an unfriendly power

to fit together information it already had which could, in fact, prejudice the national security of this

country.

Against that, Mr. Tansey for the defendant submits that here we are not just dealing with some

unfriendly country, we are dealing with Russia, now that the cold war has ended that Russia is no

longer a potential enemy but is, indeed, a friend and, therefore, he submits that any information

which might possibly be gained by them would not prejudice our national security.

In the Court’s view this is taking too narrow a view of the words “prejudicing the national security”.

There are many ways in which national security can be prejudiced; they can be both direct and

indirect, and I do not consider that argument advanced by Mr. Tansey is one that finds favour with

the Court.

He further says that on analysis the evidence-in-chief of the evidence to be called, or wishing to be

called by the Crown both of Mrs. C and of Mr. Gordievsky is in the public domain. It must be clear,

he says, that Mr. Gordievsky, having defected now for many years, has disclosed all he knows

about tradecraft to the Western intelligence agencies and therefore there is nothing that can be

disclosed in his evidence-in-chief that can possibly now be prejudicial to national security. He

repeats the argument in respect of Mrs. C effectively on the basis of there being a number of

defectors from Russia and the USSR prior to that to the Western agencies and, clearly, their

information would have reached the hands of the intelligence agencies and they can, therefore, be

presumed to know all about it.

That argument on the face of it is attractive, but against that it must be remembered that here we are

dealing with precise information relating to documentary evidence that purports to have been seized

by the prosecuting authorities from Mr. Smith. That information is precise and the interpretation is

precise. While I recognise that there is clearly a paragraph or two of Mr. Gordievsky’s evidence,

generally about him being a Russian agent, which I accept can be given in open court, in public

which is a thumb nail sketch of his history up to 1989. Thereafter, when he turns to deal with his

specialised knowledge and the knowledge dealing either with documents that are exhibits, any

documents that are exhibits in this case, I am satisfied on the information before me that it would be

prejudicial to the national safety to allow that evidence to be given in public.

As to Mrs. C, again I recognise it could well be that the fact that she is a member of an intelligence

agency here and experienced in obtaining information from defectors could not of itself, that

sentence, be said necessarily to be prejudicial to national safety but, thereafter, particularly in view of

her statement that it is impossible to say whether any particular piece of information might be fitted

into the jigsaw of the information possessed by an unfriendly power, I find it impossible to say that it

would be safe to allow any of the rest of her evidence to be given.

In those circumstances, it seems to me, doing the best I can, it would be of no consequence to her

to give one short sentence before the court went into camera.

I consequently rule that her evidence in full should be given in camera and, save for the few

preliminary questions of Mr Gordievsky, thereafter that evidence should be given in camera.

If in the course of cross-examination there is an application to cross-examine Mr Gordievsky on

general matters and not on specific matters, as and when that arises I will rule as to whether that

portion of his cross-examination might be able to be given in open court.

I turn finally to consider the case of Mr. E. Mr. E is an American National. His witness statement

shows that he was in contact with USSR through Mr. Oshchenko. Thereafter he was in contact with

his own country’s Security Services and then was put by them in contact with this country's Security

Services. He is, from his statement, reluctant to disclose his name. It may be, as he has been in touch

with both Security Services, that he might be under pressure if it were known that was the case and,

although there is no direct evidence of it, it is clearly a possibility that some retaliation might be

directed against him.

It is said by Mr. Tansey that the information they have about him is so limited they would not

properly be able to attack his credibility. If they were given his name and his address enquiries could

be briefed and sources could be possibly found which would indicate that he was a wholly

unreliable, possibly dishonest character or one given to telling tall stories; as is put, a Walter Mitty

character.

Against that must be borne in mind that the Court has already had the opportunity of reading the full

file on Mr. E which was disclosed ex parte by the Crown and, after reading it, I directed that four

substantial documents be disclosed to the defence. Those documents all have deletions where names

occur, but they are bulky documents; they come from two separate sources; some from this

country’s intelligence services, and one from the United States intelligence services. Also they can be

checked because the defence again has been supplied with the debriefing notes of Mr. Gordievsky

in relation to the appropriate matters and, therefore, there is substantial material which is in the hands

of the defence on which Mr. E can be cross-examined.

As far as Mr. E is concerned, I have borne in mind the strong way in which Mr. Tansey puts it. He

says that Mr. E is not a peripheral witness. He puts him at the heart of the case. He draws the

Court’s attention to a powerful passage of the judgement of Fortas J. in the United States case of

Smith v. Illinois where the Supreme Court was considering the accused’s right to confront the

witnesses against him given under the sixth amendment of the Constitution. It reads:

“... where the credibility of a witness is in issue, the very start in exposing falsehood and bringing out

the truth through cross-examination must necessarily be to ask the witness who he is and where he

lives. The witness’ name and address open countless avenues of in-court examination and out-of-

court investigation. To forbid this most rudimentary enquiry at the threshold is effectively to

emasculate the right of cross-examination itself.”

Standing on its own those are powerful words. Bearing in mind the decision of the Watford Justices

in this country, and bearing in mind the quantity of information that has been disclosed partly by

direction of the Court and partly volunteered already by the prosecution, the situation here factually

seems to me very different and, in those circumstances, I do not propose to order that his name be

disclosed and I formally make the order that, indeed, he can give evidence without his name being

disclosed for his protection.

THE SOLICITOR GENERAL: It take it it would follow that your Lordship would confirm the

earlier provision of approval that the service of his statement in the edited form should stand - the bit

cut out.

MR. JUSTICE BLOFELD: The service of his statement contained some blanks which might have

indicated how he was known to be traced so, clearly, that any further information - I have seen the

unedited version of it, I should say, and it is clear that any further information that would lead to his

identity should not be disclosed.

******************

IN THE CENTRAL CRIMINAL COURT

Old Bailey,

London, E.C.4.

Wednesday, 13th October 1993

Before:

MR. JUSTICE BLOFELD

REGINA

MICHAEL SMITH

_____________

MR. D. SPENCER Q.C. (The Solicitor General), MR. J. NUTTING

and MR. J. KELSEY-FRY appeared on behalf of the prosecution.

MR. R. TANSEY Q.C. and MR. G. SUMMERS appeared on behalf of the

defendant.

_____________

Computer-aided transcription by D.L. Sellers & Co.,

(Official Shorthand Writers to the Court)

10, High Street, Leatherhead, Surrey KT22 8AN

_____________

INDEX

APPLICATION TO EXCLUDE EVIDENCE OF MR. E

RULING

Wednesday, 13th October 1993

(In camera in the absence of the jury)

MR. NUTTING: For the record, may I be allowed to indicate we ought still to sit in camera in view

of the evidence to which this aspect of the law is referable in this case.

MR. JUSTICE BLOFELD: Yes, I can see that because Mr. E -- we are in camera now, are we

not?

MR. NUTTING: Yes.

MR. JUSTICE BLOFELD: Mr. E’s evidence if admissible relates to tradecraft.

MR. NUTTING: My Lord, that is right.

MR. JUSTICE BLOFELD: Yes, Mr. Tansey.

MR. TANSEY: My Lord, your Lordship appreciates that I had at an early stage addressed your

Lordship on -- I hope you do not feel it impertinent ----

MR. JUSTICE BLOFELD: No.

MR. TANSEY: ---- if I come back to the matter to ensure I put the proposition carefully to you on

the first occasion.

MR. JUSTICE BLOFELD: What I have not done is -- you may have given me a skeleton

argument.

MR. TANSEY: May I say my argument is very short. Your Lordship is aware of the statement of

Mr. E?

MR. JUSTICE BLOFELD: I am. I looked at that last night. I will get it open again. It starts at page

278 and, so you know, I have a copy which contains the wording that is blacked out, because you

will recollect that this was in fact a statement that was considered by me in the defence’s absence

first of all.

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: When considering public interest immunity. Broadly speaking -- not

going into what is there but broadly speaking -- my recollection is that what is deleted is anything

that might tend to identify Mr. E.

MR. TANSEY: Yes.

MR. JUSTICE BLOFELD: Nothing to do with his evidence that may or may not be relevant, which

the Crown contends is relevant.

MR. TANSEY: In addition, if I could assist you, the prosecution did serve on me two notebooks

with various parts edited out as well of Mr. E

MR. JUSTICE BLOFELD: As I recollect, they served on you background documentation, I think,

from the relevant intelligence department in this country, and I am not certain you did not get

something from the US also with parts edited out. I do not think any of that is of any consequence.

MR. TANSEY: Not at all, not to the argument.

MR. JUSTICE BLOFELD: No.

MR. TANSEY: The first question your Lordship has to determine or reconsider, in my submission,

is the question of whether or not the evidence of Mr. E is relevant; in our submission, his evidence is

not relevant. What the prosecution wish or seek or need to establish before his evidence, in our

submission, can become relevant is whether or not there were any dealings between Mr. Smith and

Mr. Oschenko. My Lord, your Lordship appreciates evidentially that there really is very little

evidence, if any at all, that Mr. Smith had any dealings with Viktor Oschenko. Of course Mr. E’s

dealings with Oschenko are, in our submission, not relevant, he not being a party to the proceedings

nor Viktor Oschenko being a party to the proceedings. My Lord, the sole evidence -- the sole

effective evidence -- of the defendant having any dealings with Viktor Oschenko comes exclusively

from the telephone call in question on 8th August, the date of his arrest. Your Lordship is well aware

of that.

MR. JUSTICE BLOFELD: Well, ’phone call and subsequent movement by Mr. Smith.

MR. TANSEY: My Lord yes, indeed yes, the ’phone call and his subsequent actions.

MR. JUSTICE BLOFELD: Certainly.

MR. TANSEY: The ’phone call was, “This is George, a friend, old friend of Viktor.”

MR. JUSTICE BLOFELD: You need not trouble me. I have it clearly, mention of Viktor.

MR. TANSEY: Yes.

MR. JUSTICE BLOFELD: No mention of the surname.

MR. TANSEY: Indeed. That is the evidence on which the Crown seek to rely, that that call related

to Viktor Oschenko; there is nothing else at all. The first thing I would ask your Lordship to consider

is whether in fact any reasonable jury could safely or properly infer that that Viktor as a matter of

likelihood, reasonable inference, was Viktor Oschenko. My Lord, I say that for this reason. Your

Lordship may recall that, when Mrs. C was being cross-examined, she said in answer to several of

my questions that Viktor is a very common Russian name and in fact she said it is a very common

Eastern European name.

MR. JUSTICE BLOFELD: Did she say it was also a very common Russian name?

MR. TANSEY: Yes.

MR. JUSTICE BLOFELD: I thought she said Eastern European.

MR. TANSEY: I put about Poland and she said very common Russian name as well.

MR. JUSTICE BLOFELD: All right.

MR. TANSEY: If that is the case, that is the evidence. If it is a common Eastern European and

Russian name, how can one conceivably say therefore, as a matter of reasonable inference, that the

Viktor in the telephone call must relate to Viktor Oschenko? There is nothing at all to assist and, if

we have the position that there are lots of Eastern European people with the name Viktor, how can

anyone reasonably say it must relate or there is a very strong inference or a reasonable inference that

it relates to Viktor Oschenko.

MR. JUSTICE BLOFELD: Let me start if I may at the moment with the telephone call. The

telephone call we have already heard is in an accented voice.

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: It is open to the jury to say that it is as a result of that telephone call that

Mr. Smith did certain things.

MR. TANSEY: That is a very reasonable inference; I accept that.

MR. JUSTICE BLOFELD: When the car is searched there is documentation found in it that comes

from HRC, and we now know that his bank account and other documents indicate he had received

sums of money.

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: It seems to me there is an inference to be drawn from those matters that

Mr. Smith, on that morning of 8th August, was acting in accordance to some extent with instructions

from the man Viktor; that the man Viktor was in fact certainly a foreigner, and that he was in fact

doing acts connected with supplying information to Viktor, right?

MR. TANSEY: Well, my Lord ….

MR. JUSTICE BLOFELD: Would you agree so far?

MR. TANSEY: Save that the relationship, if there was one, terminated in 1979 with Viktor; that is

the evidence. Viktor disappeared, left England and went elsewhere in 1979.

MR. JUSTICE BLOFELD: At the moment that is. Viktor Oschenko left England in 1979.

MR. TANSEY: Yes.

MR. JUSTICE BLOFELD: I am only saying that from the telephone call there are indications that

Mr. Smith was, if the jury accept it -- I am not going to go on about that, but there is evidence that

the jury can consider. It means he was going to hand over information to a friend of Viktor’s.

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: That friend of Viktor’s was a Russian -- was a foreigner. I would have

thought it was open to the interpretation that they could come to that he was a Russian. You may

disagree with that.

MR. TANSEY: The only way I can put the proposition is as I have put it.

MR. JUSTICE BLOFELD: Yes, sorry, I am trying at the moment almost to try and not exactly help

you but try and narrow the issue.

MR. TANSEY: Yes.

MR. JUSTICE BLOFELD: If you agree that those inferences are reasonable ones, there is evidence

that he was going to hand over information to a Russian who was a friend of Viktor’s. Supposing

that is the case, your point is that there is then a gap in the chain, because a friend of Viktor’s does

not necessarily mean a friend of Viktor Oschenko -- it could be Viktor whatever common surname

there may be in Eastern Europe.

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: Is that the way you are putting it? Are you saying ----

MR. TANSEY: My Lord ----

MR. JUSTICE BLOFELD: Are you going further than that?

MR. TANSEY: I am saying that, as it stands at present, the only evidence so far as the

documentation is concerned is in fact that it was in the car, the boot of the car. Whether it was to be

handed over is a matter in issue but certainly it was in the boot of the car.

MR. JUSTICE BLOFELD: I follow that it is all in issue. I am simply saying: being in the boot of the

car; going to the very ’phone box that was mentioned in the telephone call, albeit a little later than he

was instructed to -- I am simply saying it would seem to me open to a jury properly directed to

draw the inference that he was going to hand over documents in due course, at the behest of the

friend of Viktor’s.

MR. TANSEY: Your Lordship is aware that there is no reference to documents of any kind in the

telephone call; it is purely an urgent message.

MR. JUSTICE BLOFELD: I entirely appreciate that, but then we have got the evidence of

tradecraft which seems to indicate that, during that summer, something was happening. It is certainly

open to the jury to take that view, so I would not have thought that you would get very far if you

said those inferences were not capable of being drawn by the jury. But where I am more concerned

is whether in fact, if that is the case, Viktor in the telephone call is sufficiently linked with Viktor

Oschenko.

MR. TANSEY: That is the concern. That is the significant part of the prosecution case. That is how

they put it and, my Lord, the submission is how can they reasonably say that? How can they say it is

Viktor Oschenko? They have not called him; they have no documents; there are no sightings.

MR. JUSTICE BLOFELD: No evidence -- there is no evidence at the moment before the jury that

Mr. Smith and Mr. Oschenko ever were in each other’s company.

MR. TANSEY: That is right.

MR. JUSTICE BLOFELD: I know you put the question and there was a slight delay about a

misunderstanding, but it came out clearly that there are no photographs of them.

MR. TANSEY: Indeed, yes.

MR. JUSTICE BLOFELD: But at the moment there is no evidence.

MR. TANSEY: There is none to be called.

MR. JUSTICE BLOFELD: There is no evidence forthcoming.

MR. TANSEY: As I understand the position, there is no evidence forthcoming at all. So we

therefore have the most tenuous connection, in our submission, between a telephone call in August

1992 and Viktor Oschenko. All we have in common is the name Viktor -- and that could be any

Viktor out of millions -- in the telephone call.

MR. JUSTICE BLOFELD: Yes.

MR. TANSEY: But the prosecution have to tie it in to enable, in our submission, this evidence to be

admissible. They have to tie it in to Viktor Oschenko and they just have not got the material, in my

submission; it is not there.

MR. JUSTICE BLOFELD: You say that, if they do not -- if that is an inference that cannot properly

be drawn -- then any dealings that Mr. E had with Mr. Oschenko are totally irrelevant?

MR. TANSEY: Yes.

MR. JUSTICE BLOFELD: If they can tie it in, what do you say then?

MR. TANSEY: My Lord, then again there is the question: is that relevant? I wait to hear how the

Crown would put it in that context. My Lord, when we move on, we then merge into the question of

the impolite assertion effectively, the Kearley case, because, as I read the statement of Mr. E (and I

hope I put it fairly) the prosecution are not just going to call Mr. E to say, “I met a man. I met Mr.

Oschenko”. Identify him in due course. “I went to Portugal.”

MR. JUSTICE BLOFELD: It seems to me they could go this far without coming into the principle.

They can say, “I met a man.” I assume they would have little difficulty in establishing it was Viktor

Oschenko, if he looks at a photograph.

MR. TANSEY: That seems to be the case.

MR. JUSTICE BLOFELD: I imagine he can identify the man he met as Oschenko.

MR. TANSEY: Yes.

MR. JUSTICE BLOFELD: He could say he met him on a number of occasions.

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: He could say what nationality he was.

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: He could say at whose instigation the meetings were, whether they

were at his or Victor’s.

MR. TANSEY: My Lord, I think so, yes.

MR. JUSTICE BLOFELD: He can say that he did not pass any information to him, He can say who

paid for the meals.

MR. TANSEY: I do not know about passing information to him. That is obviously a dangerous area

because that is going to raise in the person’s mind, “Well, what’s this got to do with your meeting

this man?”

MR. JUSTICE BLOFELD: Well, this is the artificiality of the rule to some extent.

MR. TANSEY: That of course is what they said in the House of Lords.

MR. JUSTICE BLOFELD: He could then say he went to Portugal.

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: He could be asked, “Was it your idea to go to Portugal?” “No.” “Was

it as a result of …?”

MR. TANSEY: I would question that. I am sorry, may I just say that to put it that way is impliedly

putting it in.

MR. JUSTICE BLOFELD: You can say -- it is common form -- “Did you have conversation with

X? Don’t tell us what you said but, as a result of that conversation, what did you do next?”

MR. TANSEY: But even that, may I say -- I hope I am not being pedantic -- even that may well be

almost giving the information, the question.

MR. JUSTICE BLOFELD: Of course it is. That is what is so artificial about the whole thing!

MR. TANSEY: Having read R. v. Kearley, you are aware of the arguments. The point about it is

the rules have this artificiality about them but they have to be followed. All I can say about that is

that, if one says, “At whose request/instigation did you go?” and if he says, “It’s not mine”, quite

clearly he is saying, “He asked me to go.”

MR. JUSTICE BLOFELD: I am entirely with you at the moment that the details of the conversation

have to be approached extremely carefully, although in fact I do not think there is anything in the

details of the conversation that involve your client at all, so I do not think there is any harm in it. But I

can see it is arguable on the authorities that that would be right. But as to his movements, they can

clearly be given. I think the result is exactly the same. It is exactly the same. I think it comes to the

same principle, the finding of weapons. A confession can be inadmissible but if as a result of an

accused’s confession a weapon is found evidence can be given of it.

MR. TANSEY: I accept that.

MR. JUSTICE BLOFELD: Therefore I think going to Portugal can be given even though the details

of the conversation may not be given.

MR. TANSEY: The argument against that is, by putting the question, “Was it your idea to go?”

Answer: “No”, the only alternative is that “It was at his request that I went.” In our submission, that

is actually putting in what should not go in. It is putting it indirectly as opposed to putting it directly,

but it has exactly the same effect.

MR. JUSTICE BLOFELD: But one is in accordance with the rules and one is not; that is the

difference. That is the artificiality of the whole situation.

MR. TANSEY: All I can say is one has to follow the rules, as they said in the House of Lords in R.

v. Kearley, and the artificiality of it was well brought out in the decision.

MR. JUSTICE BLOFELD: I am also puzzled by what comes in the argument in R. v. Kearley as to

the state of mind; whether one is entitled to have evidence -- assuming the prosecution can clear, as

it were, the hurdle which we have dealt with that Viktor is sufficiently identified to be capable of

being Viktor Oschenko, and all this is on that basis -- it may then be arguable that all the

conversation that he had with Oschenko goes to establish his state of mind as to what was in his

mind when he went to Portugal, and that would seem, from the way it was argued in the House of

Lords, to be admissible.

MR. TANSEY: But the state of mind of -----

MR. JUSTICE BLOFELD: His state of mind was that he thought he was doing a test for the KGB.

MR. TANSEY: His state of mind is not an issue in this case. The only relevant state of mind is

effectively the state of mind of this defendant.

MR. JUSTICE BLOFELD: Well, I mean the purported relevance of the whole of this information

and the whole of this document, as I see it, from the Crown’s point of view, is simply that there was

an attempt by Oschenko to recruit Mr. E to be an agent to give information on behalf of the KGB.

Mr. E was not behaving as an apprentice agent should behave, as far as the KGB was concerned.

He did agree to go to Lisbon to undergo a test. As we have already heard from the other Russian in

the case whose name ----

THE SOLICITOR GENERAL: Gordievsky.

MR. JUSTICE BLOFELD: That is right, but the KGB quite frequently did training operations

abroad, and Portugal was quite convenient because the government there was run in such a way that

there was very little chance of agents being followed and therefore uncovered.

MR. TANSEY: Yes, I accept he said that, certainly yes. My Lord, what effectively is happening is

basically that the Crown have made a decision for reasons of their own not to call (assuming he is

available) Viktor Oschenko.

MR. JUSTICE BLOFELD: Maybe Mr. Oschenko has made the decision; I do not know.

MR. TANSEY: Whatever the reason be -- but that, undoubtedly the best evidence, the man who

says “I spoke to him” etc., is not available. He is not being called to give evidence so the Crown is

seeking to adduce through the back door what it cannot achieve through the front door. My Lord, it

is our objection that they are using Mr. E as the way to adduce the evidence as regards part of the

evidence which they would like Viktor Oschenko to give. So far as what Mr. E says ----

MR. JUSTICE BLOFELD: Well, I think I said last time to you -- maybe not about this witness --

that I could not then see; I still cannot see that Mr. E, if he is relevant, does you much harm. But that

is probably a different matter; it goes not to admissibility.

MR. TANSEY: May I say that is the simple proposition I put to you. Would you like me to

elaborate more?

MR. JUSTICE BLOFELD: You obviously would prefer to keep your powder dry till you see what

the Solicitor says. If you then come back in detail, I will give him a further right of reply. You can do

it now or later, whichever you like. Yes, Mr. Solicitor?

THE SOLICITOR GENERAL: I will deal with the two questions separately.

MR. JUSTICE BLOFELD: Yes.

THE SOLICITOR GENERAL: First, is the evidence relevant? If it is irrelevant then it fails at that

point. Secondly, assuming for the purposes of argument that it is established to be relevant, does it

infringe the rule against hearsay, or do parts of it infringe the rule against hearsay, to be more

accurate? On those two points, my arguments are, respectfully, first it is relevant and second it does

not infringe the rule against hearsay, because it is original prime evidence of the nature of the handling

of E by Viktor Oschenko.

MR. JUSTICE BLOFELD: Can we come on to the second point a little later on, if you are going to

deal with it. I will deal with them in either order you like.

THE SOLICITOR GENERAL: I propose, if it is convenient to your Lordship, to deal with it in the

order I have just stated it, relevance first.

MR. JUSTICE BLOFELD: Yes.

THE SOLICITOR GENERAL: In my submission, the evidence of Mr. E is relevant because the

Crown have opened and are seeking to establish that the defendant was recruited by Viktor

Oschenko, and that George who made the telephone call, who said that he was a colleague of “your

old friend Viktor” was there referring to Viktor Oschenko. In our submission, the evidence which

tends to identify that Viktor as being Viktor Oschenko is relevant to three issues in the case, at least

three: namely whether the items in the car were there for handing over to the Russians or for

throwing out as the defendant alleges; whether the defendant knew the Viktor referred to in the

’phone call or not, he having contended in interview that he did not know that person; and, thirdly,

whether the map of Oporto shows a training mission for the KGB or merely places of tourist interest

as the defendant himself has contended.

In our submission there is a chain of evidence which stretches right through the case from one end to

the other which would entitle the jury to come to the conclusion that Viktor Oschenko was the

Viktor being referred to in the telephone call. What we have established so far by evidence from ---

MR. JUSTICE BLOFELD: I think you can deal with me on the basis of what you can establish with

all the other evidence because, if necessary, you could put back Mr. E to the last witness in your

case. I think I ought to deal with it on what you expect to establish by the end of the case. It may be

that it is no different from the situation at present.

THE SOLICITOR GENERAL: Yes, I was not intending to direct your Lordship’s attention to that.

I was just intending to set the evidence up in its various links as it refers to Viktor Oschenko, what

we have so far and what can be added to it. What we have established so far through the mouth of

Mrs. C and Gordievsky is that Oschenko was here between 1972 (I think it was) and 1979,

between certain dates that she gave; he was identified and treated as a KGB agent during that time;

that he defected about 25th July in Paris and then was ----

MR. JUSTICE BLOFELD: 1992?

THE SOLICITOR GENERAL: In 1992, and then came to this country. So we have the beginning

and the end really of Oschenko in this country. We have also established through the mouth of Oleg

Gordievsky that Portugal was used as a friendly country during the 1970s -- friendly from the Soviet

point of view -- for training agents, and both he and Mrs. C have said with varying degrees of

inclination that the map of Oporto appears to be consistent with some agent training rather than with

a map referring to places of interest.

MR. JUSTICE BLOFELD: Candidly I did not think either of them were particularly enthusiastic.

They said, “Yes, it’s capable of being that; it’s capable of innocent interpretation.”

THE SOLICITOR GENERAL: Indeed. How much more useful then to the jury is evidence which

enables them to put hitherto ambiguous evidence into an unambiguous category. It is evidence that

would be of assistance to the jury in our submission to resolve that doubt, if doubt there be.

MR. JUSTICE BLOFELD: What Mr. Tansey says is, before you get to that stage, there has to be

sufficient evidence for the jury to be able to come to the decision that the Viktor mentioned in the

’phone call ----

THE SOLICITOR GENERAL: I am trying to set the thing up so that I can say why that is so. I may

be going too far back ----

MR. JUSTICE BLOFELD: Yes.

THE SOLICITOR GENERAL: ---- for your Lordship but, looking at it as an intellectual exercise,

which I am trying to do, that is what we have at the moment from those two witnesses. In addition,

as your Lordship has pointed out, we have the defendant responding to the ’phone call, a ’phone

call made by a man with an accent from somewhere in Eastern Europe.

MR. JUSTICE BLOFELD: With an accent, at the moment. I do not think anyone -- did he say he

was putting on a Russian accent?

THE SOLICITOR GENERAL: We have heard the evidence. I am sure anybody can draw their

own conclusion. He did not say I asked him who was that and he said it was me.

MR. JUSTICE BLOFELD: That is why I said a foreign accent; I cannot say.

THE SOLICITOR GENERAL: I have written down in my note “foreign accent” so I will stay with

that.

MR. JUSTICE BLOFELD: Yes, you have no difficulty in persuading me that the movements

described by your police officers would certainly enable a jury, if they were minded to, to come to

the conclusion that the actions of Mr. Smith were as a result of the telephone call by a gentleman

talking in a foreign manner. I will have no difficulty, in view of the documents in the car and the

tradecraft notes in the house, in coming to the conclusion that this was not the first time he had been

in touch with such a person, and it was not the first time he had handed over such information. There

is plenty of evidence to go to the jury, but the point I would like your help on is whether the

foreigner is sufficiently tied in to Viktor Oschenko.

THE SOLICITOR GENERAL: In my submission, the answer to that is that, if one looks at the

similarity in the pattern of behaviour of the defendant and E during the 1970s, and takes into account

the Williams letter, one can draw the conclusion that they were behaving in the same way.

MR. JUSTICE BLOFELD: So you are relying on E to prove that the Viktor is Viktor Oschenko.

THE SOLICITOR GENERAL: Yes, quite simply the question being put to me is: who is Viktor?

The answer is that the Viktor is somebody who was an old friend of the defendant who had been

involved with him in clandestine activities some time in the past, as evidenced by the Williams letter

and the evidence.

MR. JUSTICE BLOFELD: I am trying to go back to the Williams letter.

MR. KELSEY-FRY: Page 272.

MR. JUSTICE BLOFELD: Right at the end of the blue bundle, is it?

THE SOLICITOR GENERAL: Yes, “A lot of water has passed under the bridge after our latest

appointment. I am sure we should have a chat in the nearest future. I would be happy to meet you as

previously at the recreation in October. With best wishes.” The accent of the person making the

’phone call I have described as foreign, but the accent of the person writing the letter is Russian; see

Mr. Avery, his evidence about the formation of the sentences, in particular “nearest future” and the

word “recreation” and to a lesser extent on the envelope the use of the capitals for lower case.

MR. JUSTICE BLOFELD: Mr. Gordievsky said that that was the way he would expect a Russian

case officer to write to an agent who had been put out to grass.

THE SOLICITOR GENERAL: Yes. The pattern of behaviour on which I rely is this. E is told by

Viktor Oschenko, “Get a job so that you can get information and pass it over.” E is given money as

well and is put on retainer; he is sent to Portugal on a training run, in his statement he says by George

-- in our submission, it does not matter who, because the significance of Viktor Oschenko is not as

an individual but as the organisation he is representing -- and the third thing that happens is that he is

handed over from Viktor Oschenko to another.

What I say is that the defendant’s behaviour in the 1970s and 1980s mirrors just that. He makes

contact as he admits in his interview with somebody from the Russian embassy at a meeting in a

church hall in Surbiton. He goes across the river to a couple of functions at the university or

polytechnic in the company of Russians from the embassy. He expresses his communist background,

gets a secret job and holds it until his communist past is revealed. He goes to Portugal in 1977 on a

training run and then, because Viktor Oschenko leaves this country in the late 1970s, it is implicit in

what we know that he was then handed over to another Russian handler. At the material time we are

concerned with, 1990-92, Oschenko was not in this country.

So, if E had behaved as he was exhorted to do, his conduct would have mirrored exactly the pattern

of conduct which we see evidenced by the defendant during the 1970s and 1980s. That is why we

say that it answers the question: who is Viktor? In the circumstances it can only be Viktor

Oschenko. The idea that there is some other Russian KGB officer, not Viktor Oschenko, who is

handling him is ridiculous.

MR. JUSTICE BLOFELD: I do not find that ridiculous at all at the moment. I tell you why. We

have heard that training runs are conducted abroad; we have heard they all go to school and learn it.

I would have thought, if you all go to school, at the end of the day you all run it in much the same

way. I cannot see why there is anything about what Viktor Oschenko is doing that is peculiar to

Oschenko. I would have thought that it is peculiar, if it is peculiar, to every Russian case officer.

THE SOLICITOR GENERAL: Yes, but that is not the point, with respect. What appears to be

being said in response to your Lordship’s argument, which was that the evidence in respect of the

’phone call and the defendant’s activities around 8th August does tend to show that he was going to

hand over documents from his place of work to a Russian, and that that was in some way connected

with a Russian called Viktor. Once you get to that point in the argument, it is then a very small

distance to answering the question: which Russian Viktor, who is a member of the KGB, are we

talking about? It is only the surname that we are needing to put in place; that is the only thing I have

to do, and that is what Mr. E does. He just says that the Viktor is Oschenko; that is the effect of it.

MR. JUSTICE BLOFELD: Mr. Tansey starts, I think, from a different premise to you. He says that

you are only entitled to call Mr. E once you have established that the Viktor in the ’phone call is

Oschenko and to - and the jury would be satisfied about that. You are putting it a slightly different

way. You are saying that E’s experience would help the jury come to the conclusion that Viktor is

Oschenko.

THE SOLICITOR GENERAL: What I am saying is that, in deciding whether the Crown have

proved that Viktor was Viktor Oschenko and who recruited the defendant, they are entitled to look

at the whole evidence. There is a particular significance about Viktor Oschenko in relation to the

events of Thursday, 6th. If it was only just some Viktor who was referred to in the ’phone call and

not Viktor Oschenko, the events of Thursday, 6th do not bear their proper interpretation, we say.

The significance of the 6th is not so much what the defendant did; it is what the Russians did not do

on Thursday, 6th. They did not turn up to keep the meeting in Harrow. That was because they knew

that Viktor Oschenko had defected -- who had handled the defendant -- and therefore the

likelihood was that he would have given a list of agents he handled to British Intelligence who would

be on the look out, and that is why they did not turn up, in my mind.

It is important to the resolution of that issue that we are enabled to complete the picture in

demonstrating the significance of Viktor Oschenko on 6th August.

MR. JUSTICE BLOFELD: Can I go back Mr. Solicitor. I am not quite clear about that. The

telephone call and the arrest took place on 8th August.

THE SOLICITOR GENERAL: Saturday morning.

MR. JUSTICE BLOFELD: Reference to 6th August comes in one of the so-called tradecraft notes.

THE SOLICITOR GENERAL: Yes.

MR. JUSTICE BLOFELD: No indication that the purported meet on 6th August was known to the

English or British Intelligence until that tradecraft note was found.

THE SOLICITOR GENERAL: That is right.

MR. JUSTICE BLOFELD: The defendant is questioned about it in the interview and says ----

THE SOLICITOR GENERAL: He said, “Having been down to Basingstoke for a familiarisation

course with Eli Lilly, I went up to Harrow in order to try and buy Keyboard magazine.”

MR. JUSTICE BLOFELD: In other words, from what the defendant said in answer to the questions

in his interview, the reasonable inference can properly be drawn that the 6th August on (I am going

to call it for shorthand) the tradecraft note is 6th August 1992.

THE SOLICITOR GENERAL: Most certainly; there cannot be any doubt.

MR. JUSTICE BLOFELD: Therefore if the jury should come to that conclusion, then he cannot

say, “This refers to an earlier year when I was having dealings with my friend Harry.”

THE SOLICITOR GENERAL: Not at all. The full context of that page ----

MR. JUSTICE BLOFELD: Yes, I think I have got the full context.

THE SOLICITOR GENERAL: There is reference to Gehring, his holidays and the redundancies

and so on. It is a 1992 document.

MR. JUSTICE BLOFELD: Yes, so those tradecraft documents, the Crown say first of all that they

are craft documents; secondly they say they refer to the handing over of information -- otherwise

why have them? -- thirdly they refer to an abortive meeting on 6th August. So in fact the British

Intelligence bogus telephone call on 8th August, as it happened, could hardly have been better

timed, unbeknown to them.

THE SOLICITOR GENERAL: That is right; the defendant would be sensitive that something had

gone wrong.

MR. JUSTICE BLOFELD: He did not know what and might wonder, which might, you say, explain

why he demurred and did not turn up in the first quarter hour but did then turn up in case it was all

right.

THE SOLICITOR GENERAL: Indeed.

MR. JUSTICE BLOFELD: Therefore you say the inference thereafter is that he was there with the

documents in his car because he hoped to get rid of them on the Thursday before, but failed to do

so, and had them there ready in case. I am just trying to think through the sort of inferences, as it

were. I follow how you say that the inferences are there that he was going to hand over to an agent,

who was arguably a Russian agent, because once you can link in the tradecraft notes the jury have

Mr. Oschenko(sic) and Mrs. C saying ----

THE SOLICITOR GENERAL: Gordievsky.

MR. JUSTICE BLOFELD: Gordievsky, I mean, saying that these are to their way of thinking

Russian tradecraft notes. Once you get that, you tie it up that he is going to hand over to a Russian

agent, and you then say, once that is there -- yes, I see how you put it now.

THE SOLICITOR GENERAL: That then colours all these tradecraft notes which stretch over a

period.

MR. JUSTICE BLOFELD: Are you going so far as to say that on that evidence alone, without Mr.

E, it would be open to the jury to say the Viktor is Viktor Oschenko.

THE SOLICITOR GENERAL: Well, it is a much more difficult question to answer. There are

indications that it is, in view of the defendant going and keeping the assignation on the 6th August

and its being a failure, its coinciding with the arrival/defection of Oschenko. I am not suggesting he

knew. He just knew something had gone wrong. It was that the Russians knew that Oschenko had

defected.

MR. JUSTICE BLOFELD: I am just wondering if you are trying to call Mr. E on two bases -- I do

not know if I am getting it right -- one, to demonstrate whether he happens to be called Viktor

Oschenko or whether he happens to be called another Russian name is immaterial. You are saying

this is an indication of how the Russian agents/Russian case officers behave with a prospective agent,

and it links up remarkably closely with what you say happened to Mr. Smith. But you say the icing

on the cake is that not only is it a Russian agent but it happens to be a man called Viktor Oschenko.

THE SOLICITOR GENERAL: If one strips it down to those two parts, let us imagine for the

purposes of argument he did not mention, could not remember, the name of the person or it was

somebody else. In my submission, it would be evidence of tradecraft, first-hand evidence of KGB

tradecraft along the lines of Viktor Oschenko, except from the agent’s point of view and not from

the handler, not from the KGB officers.

MR. JUSTICE BLOFELD: Yes, I have no doubt at all, subject to hearing -- I think that is putting it

too strongly; I may have a doubt after I have heard Mr. Tansey, but at the moment I am inclined to

consider that, as to Mr. E’s movements in Portugal which relate to tradecraft, they would be

admissible in any event because they go to tradecraft pure and simple. The point that is troubling me

is the mention of Viktor Oschenko. I see how you put it. I do not think really you can develop it. I

mean I have got your argument.

THE SOLICITOR GENERAL: I just say it would be astonishing if in this case we could give the

evidence of general tradecraft through E, its being our case that it was Viktor Oschenko who

recruited both him and the defendant, and we could not complete the story to show just that: that he

had this telephone call immediately precipitating the defendant’s arrest with him clearly acting in a

clandestine way, motivated to hand over these documents to a Russian handler with whom Viktor

was associated, with an old friend and colleague, and we could not then indicate the surname of the

Viktor, but we could everything else. In my submission, that is not attractive. Anyway that is the way

I put relevance. So far as the -- unless your Lordship wishes me to go on?

MR. JUSTICE BLOFELD: Yes.

THE SOLICITOR GENERAL: So far as the second argument concerned with hearsay -- assuming

it to be relevant, does it infringe the rule against hearsay? -- in my submission, it no more infringes

the rule against hearsay than what Mr. Gordievsky was saying about the practices of the KGB.

Whereas he was speaking in the general practices of the KGB from a lifetime’s experience, this

man, as a person who has been handled by them, is just as entitled to give specific evidence as

Gordievsky was to general: we sent agents to Portugal; it was a friendly country; we gave them a

map and made them walk round the street in a particular way at a particular time to see if they were

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.

THE SOLICITOR GENERAL: Yes.

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?

THE SOLICITOR GENERAL: Indeed.

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.

THE SOLICITOR GENERAL: Yes.

MR. JUSTICE BLOFELD: Did they mention the defendant by name or …?

THE SOLICITOR GENERAL: Yes, Chippie. They kept saying things like, “I want the usual from

Chippie” or however many grains it was.

MR. JUSTICE BLOFELD: That is directly, you say, similar to the example that we all apparently

thought up together, or rather apart.

THE SOLICITOR GENERAL: Our case is rather like Woodhouse v. Hall, the massage parlour,

where the police officers gave evidence that the ladies offered various relief services. The ladies

were not called. The Crown having to prove that it was being managed as a brothel, this was

tendered as evidence to show that it was being run as a brothel in just the same way.

MR. JUSTICE BLOFELD: That was admissible?

THE SOLICITOR GENERAL: That was admissible, yes.

MR. JUSTICE BLOFELD: It did not go to the crucial question as to whether it was Woodhouse or

the other; I do not remember who the appellant was in that case.

THE SOLICITOR GENERAL: I cannot remember.

MR. JUSTICE BLOFELD: Actually concerned in the management of the brothel.

THE SOLICITOR GENERAL: It showed the nature of the services being offered, just as if they put

a board up outside “Relief massage ?15 a time” or whatever it was, looked at in the ----

MR. JUSTICE BLOFELD: As far as R. v. Kearley is concerned, the mischief was the mention of

Chippie rather than the mention of drugs.

THE SOLICITOR GENERAL: Well there were a number of -- the Crown were essentially relying

on the truth of the implication of what had been asserted, i.e. ----

MR. JUSTICE BLOFELD: The Crown were saying people at the other end would not have said,

“We want some drugs off Chippie” unless Chippie was supplying drugs.

THE SOLICITOR GENERAL: That is the implication of what they said, and the Crown were not

able to call the people making that assertion, only the police officers who heard it. So, although the

Crown sought to argue that it was a Woodhouse v. Hall case, the majority held that it was not; that

it was not being adduced as original evidence of the nature of the transaction but it was sought to be

used to prove the truth of that which was being asserted by the person not being called, i.e. by the

caller, namely, “I get my drugs from Chippie, the defendant”, and that was the vice to which the

majority -- I mean, our case, just to vary Kearley is more as if one of the 17 or so callers had in fact

been called to say, “The defendant did offer me drugs before and that’s why I ran.” That is more the

nature of what we are seeking to do here. It is far removed from Kearley. There is another objection

in Kearley.

MR. JUSTICE BLOFELD: You say this is original evidence to show how a Russian case officer,

who happens in this case to be Viktor Oschenko, runs his agents.

THE SOLICITOR GENERAL: Yes.

MR. JUSTICE BLOFELD: Rather than evidence -- well now, it is not rather than evidence to show

that Viktor Oschenko ran Mr. Smith, because it is your case as I understand it that this might help

the jury to show that Viktor Oschenko did run Smith. Mr. Smith will forgive me if I do not now say

Mr. Smith every time; it saves time.

THE SOLICITOR GENERAL: Yes, but it is very similar to Woodhouse v. Hall, just as the Crown

were there having to prove the nature of that agency and the nature of that organisation, namely was

it offering services of a particular kind? It is exactly the same here.

MR. JUSTICE BLOFELD: Just trying to test it at the moment, Mr. Solicitor, if that is the case, why

mention Oschenko’s name at all? Why not say, “Now we are going to call somebody; we are going

to show you what a Russian agent did. This is all to show how tradecraft and Russian agents work.

THE SOLICITOR GENERAL: Yes, but the important additional factor is not only how it works

but how a particular person operated.

MR. JUSTICE BLOFELD: I can see how you are entitled -- it may be, if you are right on the

hearsay matters -- to Viktor Oschenko’s name on a different basis. It is your case that Viktor

Oschenko is a KGB agent. You have been told that -- you have been told that by Mrs. C at the

moment and Gordievsky. You are perfectly entitled to call another person to say, not only have you

heard generally he was suspected to be a Russian agent but I worked for him.

THE SOLICITOR GENERAL: Yes, Mrs. C has said he was treated as one. This is evidence that

he was behaving as one. That is all in our submission.

MR. JUSTICE BLOFELD: I think where my difficulty is it does not seem to me -- it never has

seemed to me -- that it really matters, particularly from the point of view of the Crown case, whether

in fact your theory that Viktor Oschenko was running Mr. Smith is right or whether it was some

other Russian agent. Your case is that he was handing over and had handed over information to the

Russians.

THE SOLICITOR GENERAL: Yes.

MR. JUSTICE BLOFELD: I follow that. The theory in fact is that you say that the defection, allied

to the 6th August failure to meet, is in fact a pointer that it is Oschenko, but I have never thought it

mattered very much from the Crown point of view.

THE SOLICITOR GENERAL: That is a matter for judgement but it is our submission that it does

matter because it is only if you know the identity of the Viktor to whom the telephone call refers that

you can properly see the events of the 6th August in their true light. Apart from that it is just largely

assertion on our part.

MR. JUSTICE BLOFELD: I think I am raising an intriguing but irrelevant red herring probably.

THE SOLICITOR GENERAL: That is how I put it.

MR. JUSTICE BLOFELD: What do you say though; how do you define it? If you say it is original

evidence of how agents are run in general, and it is also an agent, evidence that ----

THE SOLICITOR GENERAL: And that it was Viktor Oschenko who recruited the defendant.

MR. JUSTICE BLOFELD: Viktor Oschenko is a Russian KGB man.

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.

MR. JUSTICE BLOFELD: I cannot equally see that there is anything to prevent the Crown calling

Mr. E to prove Oschenko worked for the KGB.

MR. TANSEY: The experts can give the evidence because it is a matter of their expertise, and

therefore I could not object to Mrs. C doing that or Mr. Gordievsky.

MR. JUSTICE BLOFELD: Trying to think ahead, you could get round that by saying that there is

no need to call Mr. E; I will make a full admission that Viktor Oschenko is ----

MR. TANSEY: I think that is formally in evidence.

MR. JUSTICE BLOFELD: There is nothing to stop them calling another witness.

MR. TANSEY: No, but in fact I have never challenged it.

MR. JUSTICE BLOFELD: That does not mean you cannot argue the hind leg off a donkey when it

comes to the jury. It does not mean that the jury have to accept it, but that is the only way round it.

MR. TANSEY: I would have thought, if I were not going to accept it, it could be said that I could

have challenged it.

MR. JUSTICE BLOFELD: I do not see how you would be in a position to challenge it. You have

no instructions about it one way or the other. Your client knows nothing about the Russians; he only

deals with professional rivals.

MR. TANSEY: I could have probed and tested it.

MR. JUSTICE BLOFELD: You could have done.

MR. TANSEY: Clearly the Crown has shown it on the expert evidence of Mrs. C, who I would not

dream of challenging in that context, that Viktor Oschenko was an agent, a KGB agent. I have not

challenged that. My Lord, what one comes to in this case is -- what the Crown are doing -- they are

just trying to -- they are trying to tie the defendant in with Oschenko in 1979, or around that period

of time, 1979, and they link in the time date with Mr. E on that sort of time scale. My Lord, around

that relevant period of time is the framework of what they are doing. But, my Lord, effectively what

they are doing, looking at the evidence of Mr. E -- they are not saying, as in the normal situation of

when hearsay evidence can be adduced, “Well, this” -- just one of the matters they are saying --

"We are relying on this from which we can draw and the jury can draw inferences of fact.” That is

the point of the R. v. Kearley proposition; it is the implicit inferences that one can draw from the

facts. So they are relying upon it testimonially. They are saying not merely that Mr. E had this

conversation with Mr. Oschenko but they are saying, “We rely upon that to prove all the following

facts.” So therefore in our submission that is a clear ----

MR. JUSTICE BLOFELD: What they are relying on is not the actual conversations. They are

relying on the way that Viktor Oschenko dealt with a purported agent, Mr. E, and they are saying

that those actions, the way he dealt with them, are similar to what we know about the defendant’s

actions.

MR. TANSEY: My Lord, they are not relying on it in the same way as in R. v. Kearley, in saying he

has been named. Now, whether that is a difference or not I do not know. I think some did and some

did not. Some people rang up and asked for drugs; some asked whether he was there. There are

different groupings but effectively it is the same consequence. What the Crown sought to show was,

from these telephone calls, the man Kearley was clearly dealing in drugs, and they were using the

telephone calls as an attempt to show ----

MR. JUSTICE BLOFELD: I think we better look at what you want me to read. I have read it

before, but I only got it this morning.

MR. TANSEY: May I say the key proposition -- your Lordship has made the point earlier -- is that

the rules are artificial.

MR. JUSTICE BLOFELD: Yes, they are; never mind.

MR. TANSEY: But we have to apply them.

MR. JUSTICE BLOFELD: They may be artificial or I may think they are artificial but I still have to

try and abide by the law as laid down by the House of Lords. It is quite immaterial what I think of it.

MR. TANSEY: Indeed yes, and what we are saying is the Crown in this case here will be saying to

the jury, “It is quite clear when you consider Mr. E’s evidence of what he did and from what he said

was the conversation between himself and Viktor, that in fact Viktor Oschenko at this material time

was in fact employing him and using him as an agent, and had suborned him at this particular period

of time.” They are going to rely upon it as being the truth from which inferences can be drawn and

the inferences they are going to seek to rely on.

MR. JUSTICE BLOFELD: They are going to rely on the fact that E was stringing Oschenko along,

pretending to be an agent, to show that is how Oschenko tried to run his agents.

MR. TANSEY: It is both. It is how he behaved but also the conversation of Viktor Oschenko with

him. So they are going to say, by inference, “When he asked me to do this and to do that” -- the

Crown’s case is of course that is exactly how he operates -- “when he said these things, that is the

truth, and that is what we want you to bear in mind, members of the jury.” That is the argument that

they are going to be relying upon; the contents of the conversation.

MR. JUSTICE BLOFELD: They are relying on the contents of the conversation first of all, as I see

it, to show how a Russian agent in this country -- I am going to call him a Russian case officer

because I think it is easier -- contacts and tries to run his English agent.

MR. TANSEY: Is that relevant? Is that admissible? I mean, the fact that he approaches A in one

way, you cannot say therefore he runs B and C, D, E, F the same way. What the Crown has to

show, I would suggest, is they have to show something much more. They have to say there is

something so striking and particular, unique, about it that the general level -- but there is nothing

special about it -- “Get some information about things” -- there is nothing special and unique about

it.

MR. JUSTICE BLOFELD: I would still like, if there is a point in R. v. Kearley, if you can pick me

out one or even more highlights of what Lord Oliver or whoever ….

MR. TANSEY: If I can refer you firstly to Lord Ackner, 253 at E, 1992 2 Appeal Cases.

MR. JUSTICE BLOFELD: Yes.

MR. TANSEY: “Each of those requests was, of course, evidence of the state of mind of the person

making the request. He wished to be supplied with drugs and thought the appellant would so supply

him. It was not evidence of the fact that the appellant had supplied or could or would supply the

person making the request. But the state of mind of the person making the request was not an issue

at the trial; accordingly evidence of his request was irrelevant and therefore inadmissible. If the

prosecution had sought to call any of the persons who made such requests, merely to give evidence

of the making of the request, in order to establish their appetite for drugs and their belief that such

appetite would be satisfied by the appellant, such evidence could not properly be admitted.”

I mention that about the state of mind. It does not matter about the state of mind of Mr. E -- that is

not an issue at the trial -- or the state of mind of Mr. Oschenko. It is the state of mind of this

defendant; that is the key point.

MR. JUSTICE BLOFELD: I am not certain this is relevant.

MR. TANSEY: I mention state of mind only because your Lordship ----

MR. JUSTICE BLOFELD: Yes.

MR. TANSEY: It was raised at one particular point.

MR. JUSTICE BLOFELD: Yes.

MR. TANSEY: My Lord page 255 D, where Lord Ackner quotes from the Privy Council in

Subramanium v. Public Prosecutor:

“Evidence of a statement made to a witness by a person who is not himself called as a witness may

or may not be hearsay. It is hearsay ----

MR. JUSTICE BLOFELD: Which page?

MR. TANSEY: Sorry, 255 letter D.

MR. JUSTICE BLOFELD: This is quoting Subramanium?

MR. TANSEY: Yes.

“Evidence of a statement made to a witness by a person who is not himself called as a witness may

or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish

the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed

to establish by the evidence, not the truth of the statement, but the fact that it was made.”

My Lord, our case is that in this case the prosecution rely upon the statement, not merely the fact

that it was made but as the foundation for establishing that Viktor Oschenko was in fact a KGB

agent at that time and was seeking to suborn this witness.

MR. JUSTICE BLOFELD: I do not think that is right, Mr. Tansey. They are relying, as I

understand it, on the fact that it was made, and they are then saying that the course of conduct, as I

see it -- if Mr. E gives evidence and comes up to proof on it, they are saying that the course of

conduct by Oschenko including these conversations shows that he was a Russian case officer and

was running an agent. They say that that fact ties in with Mr. Smith’s movements. They further say

that there is evidence that Viktor Oschenko was in fact in London at the relevant period and was a

KGB case officer himself, and therefore they say that that fact -- it seems therefore likely that he

was Mr. Smith’s case officer. But there is nothing in the actual conversations themselves that make it

more likely that Viktor Oschenko was his case officer. It is the actions of E that make it more likely:

acting at Oschenko’s request and the fact that Oschenko was in London. That is why I drew the

distinction in argument with the Solicitor General about the difference between -- if he had said, “I

also have another agent named Smith.”

MR. TANSEY: My Lord, yes.

MR. JUSTICE BLOFELD: That would have gone to the truth of the statement, but I think there is a

distinction between that and the admissibility purely for the purpose of showing how an agent is run.

MR. TANSEY: What is the relevance of that? Where are they permitted -- how are they permitted

----

MR. JUSTICE BLOFELD: The relevance of that, if it is relevant, depends then on the rest of the

evidence. It depends then on the interpretation the jury should give to the Williams letter and to Mr.

Smith’s movements and his explanations for them after he has been arrested.

MR. TANSEY: My Lord, it would be interesting if the Crown could establish some authority for

actually showing that one can use or bypass the hearsay rule to establish system. My Lord, it may be

right, I am saying, but there is no authority to that effect as I understand it, and in my submission it is

not one of the exceptions to the hearsay rule on which the Crown can rely.

MR. JUSTICE BLOFELD: I have ----

MR. TANSEY: I wait to see if that is the case. My Lord, if one could just go back to page 253 to

letter F -- I think I have referred you to that:

“If the prosecution had sought to call any of the persons who made such requests, to give evidence

of the making of the request, in order to establish their appetite for drugs and their belief that such

appetite could be satisfied by the appellant, such evidence could not have been properly admitted.”

MR. JUSTICE BLOFELD: Yes. If it went just as far as that, I quite see that.

MR. TANSEY: Indeed. Can we come please to the bottom of 255. My Lord, maybe this actually

encapsulates the proposition to a certain degree. It is just between letter F and G:

“If, contrary to the view which I have expressed above, the simple request or requests for drugs to

be supplied by the appellant, as recounted by the police, contains in substance, but only by

implication, the same assertion, then I can find neither authority nor principle to suggest that the

hearsay rule should not be equally applicable and exclude such evidence. What is sought to be done

is to use the oral assertion, even though it may be an implied assertion, as evidence of the truth of the

proposition asserted. That the proposition is asserted by way of necessary implication rather then

expressly cannot, to my mind, make any difference.”

MR. JUSTICE BLOFELD: The assertion in that case was that Chippie was going to supply drugs.

MR. TANSEY: Yes.

MR. JUSTICE BLOFELD: So it was being used as evidence that Chippie was going to supply

drugs; that is the factual equivalent of the phrase “the truth of the proposition asserted.”

MR. TANSEY: Yes, it is the telephone calls and the persons coming to the residence, so the Crown

were seeking to use that to establish his case that the defendant was therefore possessed or was

supplying drugs. So, my Lord, they were there seeking to use the statement of the officers, who

clearly were giving the evidence of what these telephone callers had said, to impliedly assert as a fact

that these people had rung up, and there was only one inference, namely that they were applying for

drugs. The object of tendering the evidence would be to establish the truth of what is contained in

the statement. That is precisely what the rule prohibits, my Lord. That is exactly how the Crown are

using the statement of Mr. E, to rely upon it to assert the truth of the contents, which include the

directions or conversations that took place with Mr. Oschenko. They are saying not merely “This is

said and done”, but going on and saying, “This is exactly how a KGB agent behaves, and this clearly

shows therefore what was happening between Mr. E and Mr. Oschenko, and therefore, members

of the jury, you may well therefore establish” etc. etc. They are relying upon it as a fact to prove that

Viktor Oschenko was running this person as a KGB agent and that is exactly what they are not

allowed to do.

MR. JUSTICE BLOFELD: There it is. I think I have got your point.

MR. TANSEY: That is the proposition and, in my submission, they cannot use it in this way to

establish that the Viktor Oschenko is the Viktor in the telephone call and, my Lord, that all the

conversations should not -- any reference to any conversation should not be admitted, and your

Lordship may then say that, without the conversation, the evidence is pointless. Therefore I would

submit the whole of the evidence should be ruled inadmissible.

MR. JUSTICE BLOFELD: Mr Solicitor, I would like your help. As you did not deal with R. v.

Kearley, could you possibly look at page 261, which is part of Lord Oliver of Aylmerton’s

judgement. He cites the passage at E from Ratten v. The Queen approvingly, and then summarises it

at H:

“Thus the question which presents itself in the instant appeal can be expressed thus: was the

evidence of the police officers being tendered simply as evidence of the fact of the conversation or

was it introduced ‘testimonially’ in order to demonstrate the truth either of something that was said

or of something that was implicit in or to be inferred from something that was said?”

It seems to me that that is arguably relevant to this case. Are you saying that any of the

conversations that E had with Oschenko are being introduced by the Crown “testimonially in order

to demonstrate the truth either of something that was said or of something that was implicit in or to

be inferred from something that was said”, or are you doing it simply as evidence of the fact of the

conversation?

THE SOLICITOR GENERAL: The latter: to show the nature of the relationship. Can I refer you to

page 269.

MR. JUSTICE BLOFELD: Yes, you are doing it testimonially.

THE SOLICITOR GENERAL: Not testimonially.

MR. JUSTICE BLOFELD: Simply as evidence of the fact of the conversation?

THE SOLICITOR GENERAL: Yes.

MR. JUSTICE BLOFELD: You are not at any stage seeking to rely on the conversations to say

Mr. Smith was being run by Viktor; you are relying on the actions of E rather than the conversations

of Oschenko?

THE SOLICITOR GENERAL: What I am saying is that the conversations on the facts of this case

are part and parcel of the relationship between E and Viktor Oschenko, and it is only by looking at

what was said and done that you can ascertain the nature of the relationship. In my submission, that

you are entitled to do that is evident from what Lord Oliver went on to say at 269 when he was

dealing with Woodhouse v. Hall at B. He said he found it difficult to follow the Court’s reasonings --

he was talking about Lloyd L.J. in the Court of Appeal by that remark -- and describes the facts of

Woodhouse v. Hall. He then went on at C:

“That evidence was tendered as direct evidence and solely for the purpose of establishing ----

MR. JUSTICE BLOFELD: He says first of all that case involved no question whatever of the

admission of hearsay evidence.

THE SOLICITOR GENERAL: Indeed, I meant to cite that. That is what I say about this case, that

it is, with the rule against hearsay, the evidence sought to be tendered, and he explained why it was

at C:

“That evidence was tendered as direct evidence and solely for the purpose of establishing that the

premises were being used as a brothel. It was direct evidence of disorderly conduct by persons

employed at the premises and was no more hearsay than would have been, for instance, evidence of

a written notice on the premises advertising the services available, or evidence tendered by police

officers of witnessing a lewd exhibition. The case is, as it seems to me, not remotely parallel to the

instant case.”

I would submit that R. v. Kearley is not remotely parallel to our case either for the reasons that he

there gives.

MR. JUSTICE BLOFELD: I go on reading if I may for the moment. (Pause) All right, yes, I wanted

to be certain what it said.

THE SOLICITOR GENERAL: He deals with it ----

MR. JUSTICE BLOFELD: Yes, all right, thank you.

THE SOLICITOR GENERAL: ---- there and over the page.

MR. JUSTICE BLOFELD: All right

MR. TANSEY: May I address your Lordship on Woodhouse v. Hall, because it seems to me that

does not assist at all. The reason in that case why it was not hearsay evidence was because the

defendants were charged with running a disorderly house and, when the police officers went into the

premises, two of the persons involved in running the premises, the employees who were therefore

part of the process of running it, effectively offered these services. Therefore what was said to the

police officers was clear offering of the very services which constituted running the disorderly house.

That clearly is not hearsay and no-one could suggest it because they were employed by the very

people running the disorderly house. Therefore it was direct evidence. Certainly our case in my

submission bears no relationship at all to that. There is no connection of any kind between Mr. E

and the defendant.

MR. JUSTICE BLOFELD: Yes, I see that. I see what you say anyway.

RULING

MR. JUSTICE BLOFELD: Mr. Tansey, has asked the Court to reconsider the ruling given before

the trial commenced in relation to the admissibility of the statement served by the Crown on the

defence of a man who goes under the nomenclature of Mr. E. It is the statement dated 21st June

1993 with some blacked out deletions so that his identity cannot be known.

That statement briefly describes how in the late 1970s Mr. E was in London, was approached by a

man who he identifies from a photograph to be Viktor Oshchenko, and was then seen on a number

of occasions by Oshchenko who was anxious to recruit him to act as an agent for the KGB. In the

course of that attempted recruitment, Mr. E was required to go to Portugal and did so go.

The Crown wish to call that evidence for a number of reasons. They wish further to substantiate that

Viktor Oshchenko was at that time a KGB agent while stationed in England. We have already heard

evidence that he was stationed in England from 1972-79, and it was thought by the British

Intelligence Service that he was indeed an agent and he was treated as such. We have also heard

from Mr. Gordievsky, a defected Russian agent, that he considered (Mr. Gordievsky) Mr.

Oshchenko to be a Russian agent. I think that is right.

THE SOLICITOR GENERAL: No, that is not right, just Mrs. C.

MR. JUSTICE BLOFELD: Just Mrs. C, in which case I delete.

THE SOLICITOR GENERAL: Gordievsky never mentioned Oshchenko.

MR. JUSTICE BLOFELD: In which case I correct that: there is no mention by Mr. Gordievsky of

Mr. Oshchenko in his evidence. They further submit that the evidence that Mr. E could give deals

with Oshchenko’s activities as an agent and with the expertise that he used in order to recruit Mr. E

to act as an agent for the KGB. They therefore say that this evidence relates to the way that Russian

agents worked in England at that time which they put under the generic heading of tradecraft, and

they further say that the evidence of Mr. E being sent to Portugal as a test is also evidence of

tradecraft.

There is no suggestion in Mr. E’s statement that, at any time when he was conversing with

Oshchenko, the name of this accused person Mr. Smith was ever mentioned, either directly or

impliedly.

The Crown submit that they are entitled to adduce the bones of the conversation between E and Mr.

Oshchenko as facts of the way that a specific Russian agent attempted to persuade somebody in the

United Kingdom to work as his agent and as the background to explain the actions that that

purported recruit then took. They therefore say that they are wishing to put forward that evidence

purely as evidence of fact and not as direct evidence of proof against Mr. Smith.

However, I now turn to the state of the evidence against Mr. Smith which I summarise briefly. The

evidence against Mr. Smith at this stage of the case for a jury to consider -- whether they accept it

or not in due course is a matter for them, but the evidence is that, after his arrest, in his house were

found some notes in his handwriting which clearly relate to activities in 1992. In the same envelope is

a letter from a man signing himself “Williams”, which Mr. Gordievsky has indicated is the type of

letter he would expect a Russian case officer to write to an agent who for some reason has not been

acting as a regular agent for some time. Therefore there is evidence for a jury to consider that the

writer of that letter signed Williams is written by a Russian.

There is also evidence for them to consider that the contents of the documents contained at pages

273-276 inclusive in bundle 1 of the Crown exhibits relate to purported meetings of Mr. Smith with

his Russian case officer. It is quite clear that they do relate to 1992 because there is integral

evidence within them to indicate that and, although in interview Mr. Smith firmly denied that they had

anything to do either with Russia or with tradecraft, he accepted that his movements did in fact --

certainly in relation to his movements on 6th August -- tie up with the movements jotted down in

those notes.

Consequently the jury would be entitled to draw the inference that, for a period prior to 8th August,

the date of Mr. Smith’s arrest, Mr. Smith had been in contact with Russians for the purpose of

giving or intending to give them secret information or information that he thought was secret.

They further rely on the contents of a telephone call made by a member of the security services

masquerading as a foreigner, purporting to be made by George who was a friend of Viktor’s,

arranging for a further telephone call at a nearby ’phone box. Within minutes of that call being made,

the defendant was at that ’phone box. After his arrest documents from his place of work (Hirst

Research Centre) were found, and there is evidence that those documents were documents which at

this stage might have been prejudicial to the safety and interests of this country, and sufficient

evidence for the jury, if they wished, to say that was the purpose for which they were in the

defendant’s possession.

The final matter the Crown rely on is that there is evidence that Mr. Oshchenko defected to the

West on 25th July 1992. He came to this country shortly afterwards. The Crown say that the fact

that in the so-called tradecraft notes there is reference to a meeting on 6th August. That the

defendant in his interview admits that he went to Harrow, which is the place designated for that

meeting on that date, indicates that the Russians were not prepared to meet the defendant on 6th

August, because they knew by then that Oshchenko had defected and therefore that it was quite

probable that their cover was blown. So the Crown say there is some evidence to indicate that this

defendant was being run by Viktor Oshchenko. So much for the Crown’s contentions.

The defence submit that the evidence is by no means conclusive, on those facts, that the defendant

was being run by Viktor Oshchenko. They say that it would not be a proper conclusion for a jury to

take. With that argument, after careful consideration, the Court disagrees. The Court takes the view

that that is a matter of fact for the jury to decide. Whether they decide that it is necessary for them to

go that far again is a matter for them, because the indictment does not charge the defendant

specifically with passing information either to Mr. Oshchenko at any time in the past or to a specific

person on or about 8th August. It is simply passing information to another who was a potential

enemy in accordance with the section of the Official Secrets Act.

Consequently I take the view firmly that potentially the evidence of Mr. E is relevant. It is relevant

because there is in the Court’s view sufficient connection already with Oshchenko. It is also relevant

because the Crown are entitled to call further evidence to show that Mr. Oshchenko was a Russian

KGB agent, and it is also relevant because they are entitled to call further evidence of tradecraft.

Mr. Tansey however takes a further point on the conversations between Mr. Oshchenko and Mr. E.

He submits that those conversations are hearsay, in the sense that they are conversations between

two parties in the absence of this accused. To that extent of course he is absolutely right. He says

that those conversations are effectively being used testimonially in order to assist the Crown in

proving that this defendant was being run by Mr. Oshchenko.

It is clear from the statement of Mr. E that there is no mention of Mr. Smith in those conversations,

as I have already said. Mr. Tansey relies on the recent House of Lords case R. v. Kearley, [1992] 2

A.C. page 228. He has referred this Court to specific passages of Lord Ackner’s judgement,

specifically at page 253 at E:

“It was not evidence to the fact that the appellant had supplied or could or would supply the person

making the request. But the state of mind of the person making the request was not an issue at the

trial; accordingly evidence of his request was irrelevant and therefore inadmissible.”

He submits that, on that basis, the state of mind of Mr. Oshchenko when talking to Mr. E is not

relevant as an issue at this trial. With that the Court agrees, but it nevertheless considers Mr.

Tansey’s submissions there are not applicable because that is not the issue that this Court has to

decide. It seems to this Court that the matters that the Court has to decide are dealt with later in

Lord Ackner’s judgement at page 255 D, where he sets out a passage from Subramanium v. Public

Prosecutor [1956] 1 W.L.R. 965, 970:

“Evidence of a statement made to a witness by a person who is not himself called as a witness may

not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth

of what is contained in the statement. It is not hearsay and is admissible when it is proposed to

establish by the evidence, not the truth of the statement, but the fact that it was made.”

That point was dealt with in the judgement of Lord Oliver of Aylmerton at 261 at E, when he as it

were cited Ratten v. The Queen, 72 A.C. 378, 387 where Lord Wilberforce said:

“The mere fact that evidence of a witness includes evidence as to words spoken by another person

who is not called is no objection to its admissibility. Words spoken are facts just as much as any

other action by a human being. If the speaking of the words is a relevant fact, a witness may give

evidence that they were spoken. A question of hearsay only arises when the words spoken are

relied on ‘testimonially’, i.e. as establishing some fact narrated by the words.”

Lord Oliver at the bottom of that page at H dealing with the case of R. v. Kearley continues:

“Thus the question which presents itself in the instant appeal can be expressed thus: was the

evidence of the police officers being tendered simply as evidence of the fact of the conversation or

was it introduced ‘testimonially’ in order to demonstrate the truth either of something that was said

or of something that was implicit in or to be inferred from something that was said?”

Mr. Tansey submits that, despite the Crown saying that they in fact wished to adduce the evidence

on the first leg of Lord Oliver’s test, simply as evidence of the fact of the conversation, that on

analysis is not the correct approach, because once the conversations come into evidence, whatever

view the Crown may take of them, the jury may use those conversations to help them, if they are

minded so to do, to come to the conclusion that this defendant was being run by Viktor Oshchenko.

That indeed is a possibility, but on further analysis that is not, in the Court’s view, because these

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

evidence.

______________

IN THE CENTRAL CRIMINAL COURT

Old Bailey,

London, E.C.4.

Thursday, 18th November 1993

Before:

THE HONOURABLE MR. JUSTICE BLOFELD

REGINA

MICHAEL SMITH

_____________

MR. D. SPENCER Q.C. (Solicitor General), MR. J. NUTTING

and MR. J. KELSEY-FRY appeared on behalf of the

prosecution.

MR. R. TANSEY Q.C. and MR. G. SUMMERS appeared on behalf

of the defendant.

_____________

Computer-aided transcription by D.L. Sellers & Co.,

(Official Shorthand Writers to the Court)

10, High Street, Leatherhead, Surrey KT22 8AN

SENTENCE

Thursday, 18th November 1993

SENTENCE

MR. JUSTICE BLOFELD: Michael John Smith, the jury by their verdicts have found that you

deliberately supplied information to the Soviet Union, or the Russians as the case may be, and were

intending further to supply information if you had not been stopped by your arrest.

I have had the opportunity of observing you at length in the witness box and I have also had the

opportunity of listening to your lengthy interviews with the police. It is clear to me that you are

obviously an intelligent man. You are articulate, you are resourceful and you are also a fluent liar. I

am bound to conclude that your motives for your actions were partly ideological but primarily

financial. You were prepared to betray the interests of this country for greed.

I have considered the submissions made on your behalf now in mitigation. I recognise that you are a

man of previous good character; I take that into account. I recognise that there is only one

effectively classified document. I say effectively; I mean by that there is only one bearing the word

“Restricted” in the documentation. However, having heard the whole of the evidence in this case, I

have to sentence you on the basis that the documentation that was found in your car in parts was of

considerable importance and was of great sensitivity, and could have been substantially prejudicial to

this country.

I am bound to come to the view that, by the nature of the payments made to you and by your

persistence, you had been supplying information of use to your paymasters during the past eighteen

months to two years. Again you were doing that partly because of your ideology and partly for

money.

I am bound to assume that that information was sensitive material to the extent that you were able to

lay your hands upon it. I recognise that, by reason of your security classification, it was not possible

for you to obtain “Top Secret” or “Secret” material because your security classification was limited

to “Confidential”. I further take into account as much as we know in the public press about our

relationship with Russia on the break-up of the Soviet Union.

Nevertheless, I am bound to take the view that these are very serious offences committed over a

period and quite deliberately committed. The sentence of the Court is that you go to prison for a

total period of 25 years. That will be 8 years and 8 years on counts 1 and 2, and 9 years on count

4, to run consecutively.

________________