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MR. TANSEY: The argument against that is, by putting the question, “Was it your idea to go?”
Answer: “No”, the only alternative is that “It was at his request that I went.” In our submission, that
is actually putting in what should not go in. It is putting it indirectly as opposed to putting it directly,
but it has exactly the same effect.
MR. JUSTICE BLOFELD: But one is in accordance with the rules and one is not; that is the
difference. That is the artificiality of the whole situation.
MR. TANSEY: All I can say is one has to follow the rules, as they said in the House of Lords in R.
v. Kearley, and the artificiality of it was well brought out in the decision.
MR. JUSTICE BLOFELD: I am also puzzled by what comes in the argument in R. v. Kearley as to
the state of mind; whether one is entitled to have evidence -- assuming the prosecution can clear, as
it were, the hurdle which we have dealt with that Viktor is sufficiently identified to be capable of
being Viktor Oschenko, and all this is on that basis -- it may then be arguable that all the
conversation that he had with Oschenko goes to establish his state of mind as to what was in his
mind when he went to Portugal, and that would seem, from the way it was argued in the House of
Lords, to be admissible.
MR. TANSEY: But the state of mind of -----
MR. JUSTICE BLOFELD: His state of mind was that he thought he was doing a test for the KGB.
MR. TANSEY: His state of mind is not an issue in this case. The only relevant state of mind is
effectively the state of mind of this defendant.
MR. JUSTICE BLOFELD: Well, I mean the purported relevance of the whole of this information
and the whole of this document, as I see it, from the Crown’s point of view, is simply that there was
an attempt by Oschenko to recruit Mr. E to be an agent to give information on behalf of the KGB.
Mr. E was not behaving as an apprentice agent should behave, as far as the KGB was concerned.
He did agree to go to Lisbon to undergo a test. As we have already heard from the other Russian in
the case whose name ----
MR. JUSTICE BLOFELD: That is right, but the KGB quite frequently did training operations
abroad, and Portugal was quite convenient because the government there was run in such a way that
there was very little chance of agents being followed and therefore uncovered.
MR. TANSEY: Yes, I accept he said that, certainly yes. My Lord, what effectively is happening is
basically that the Crown have made a decision for reasons of their own not to call (assuming he is
available) Viktor Oschenko.
MR. JUSTICE BLOFELD: Maybe Mr. Oschenko has made the decision; I do not know.
MR. TANSEY: Whatever the reason be -- but that, undoubtedly the best evidence, the man who
says “I spoke to him” etc., is not available. He is not being called to give evidence so the Crown is
seeking to adduce through the back door what it cannot achieve through the front door. My Lord, it
is our objection that they are using Mr. E as the way to adduce the evidence as regards part of the
evidence which they would like Viktor Oschenko to give. So far as what Mr. E says ----