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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