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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
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
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