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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
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