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MR. JUSTICE BLOFELD: I cannot equally see that there is anything to prevent the Crown calling
Mr. E to prove Oschenko worked for the KGB.
MR. TANSEY: The experts can give the evidence because it is a matter of their expertise, and
therefore I could not object to Mrs. C doing that or Mr. Gordievsky.
MR. JUSTICE BLOFELD: Trying to think ahead, you could get round that by saying that there is
no need to call Mr. E; I will make a full admission that Viktor Oschenko is ----
MR. TANSEY: I think that is formally in evidence.
MR. JUSTICE BLOFELD: There is nothing to stop them calling another witness.
MR. TANSEY: No, but in fact I have never challenged it.
MR. JUSTICE BLOFELD: That does not mean you cannot argue the hind leg off a donkey when it
comes to the jury. It does not mean that the jury have to accept it, but that is the only way round it.
MR. TANSEY: I would have thought, if I were not going to accept it, it could be said that I could
have challenged it.
MR. JUSTICE BLOFELD: I do not see how you would be in a position to challenge it. You have
no instructions about it one way or the other. Your client knows nothing about the Russians; he only
deals with professional rivals.
MR. TANSEY: I could have probed and tested it.
MR. JUSTICE BLOFELD: You could have done.
MR. TANSEY: Clearly the Crown has shown it on the expert evidence of Mrs. C, who I would not
dream of challenging in that context, that Viktor Oschenko was an agent, a KGB agent. I have not
challenged that. My Lord, what one comes to in this case is -- what the Crown are doing -- they are
just trying to -- they are trying to tie the defendant in with Oschenko in 1979, or around that period
of time, 1979, and they link in the time date with Mr. E on that sort of time scale. My Lord, around
that relevant period of time is the framework of what they are doing. But, my Lord, effectively what
they are doing, looking at the evidence of Mr. E -- they are not saying, as in the normal situation of
when hearsay evidence can be adduced, “Well, this” -- just one of the matters they are saying --
"We are relying on this from which we can draw and the jury can draw inferences of fact.” That is
the point of the R. v. Kearley proposition; it is the implicit inferences that one can draw from the
facts. So they are relying upon it testimonially. They are saying not merely that Mr. E had this
conversation with Mr. Oschenko but they are saying, “We rely upon that to prove all the following
facts.” So therefore in our submission that is a clear ----
MR. JUSTICE BLOFELD: What they are relying on is not the actual conversations. They are
relying on the way that Viktor Oschenko dealt with a purported agent, Mr. E, and they are saying
that those actions, the way he dealt with them, are similar to what we know about the defendant’s
actions.
MR. TANSEY: My Lord, they are not relying on it in the same way as in R. v. Kearley, in saying he
has been named. Now, whether that is a difference or not I do not know. I think some did and some
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