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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.
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):