No challenge over decision to free arms plot

19 June 2010
Belfast Telegraph
Paul Higgins

A man who had been accused of a gun smuggling plot walked free from court yesterday after the prosecution decided not to appeal a judge's decision to stop the case.

Prosecution lawyer David McDowell told Belfast Crown Court judge Mr Justice Hart: "We do not intend to appeal your Lordship's ruling yesterday so the defendant can be discharged."

Following an abuse of process application from defence QC Orlando Pownall on behalf of 44-year-old Desmond Kearns, Diplock judge Mr Justice Hart ruled that a secret service MI5 agent known only as 'Amir' had overstepped the mark and gone into the area of entrapment.

In his ruling the judge said that having reviewed the evidence "the edifice of the case now rests on inadequate foundations and therefore that edifice cannot stand".

Mr Justice Hart said that given the evidence of two meetings between Amir and Kearns, the Lurgan man acted in the way he did because he had been "entrapped" during the operation against the Real IRA.

"The defence have satisfied me that Kearns conduct was brought about by the misconduct of Amir that the offences were artificially created by that misconduct, and that the administration of justice would be brought into disrepute where the prosecution permitted to continue," said Mr Justice Hart.

Kearns, from Tannaghmore Green, Lurgan, had always denied the two charges of plotting to possess guns and explosives between May 2005 and June 2006.

However the case will resume on Monday against 43-year-old Paul McCaugherty, from Beech Court, also Lurgan, after Mr Justice Hart ruled it did not follow that because he'd ruled Kearns' case be stayed, his case should also be stopped.

The judge said there was nothing to suggest that the agent known as 'Ali' did nothing more than "skillfully and convincingly play the role of an arms dealer", and as such there were no grounds to stop McCaugherty's trial.

He faces a total of six charges including conspiring to get arms and explosives, IRA membership and three charges of using money for the purposes of terrorism.

A third man, 41-year-old Dermot Gregory, of Concession Road in Cossmaglen, is also on trial and denies two charges making property available to terrorists.

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