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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?
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