Smuggler 'entrapped' by MI5 argues lawyer

15 June 2010
The Irish News

The prosecution case against one of the three Co Armagh men facing charges arising out of an MI5 sting operation against the Real IRA should be thrown out, his lawyer has argued.

Defence QC Orlando Pownell told trial judge Mr Justice Hart that it would be an "abuse of process" to continue with the Belfast Crown Court trial of 44-year-old Desmond Paul Kearns from Tannaghmore Green, Lurgan.

The London-based lawyer said the cigarette smuggler was "entrapped" by MI5 operatives as part of an initial intelligence gathering operation by the Security Service against weapon procurement in western Europe by the Real IRA.

Mr Pownell submitted that this was the "most unusual case, if not unique... as it relates to entrapment".

That entrapment of Kearns, he said, was carried out by one of the main prosecution witness, known only as Amir, a Secret Service 'role-playing operative'.

He was described by Mr Pownell as "a clever and trained individual" who used deceit to get his own way and Kearns proved no match for him.

It was Amir, he further claimed, acting as an agent provocateur, using the incentive of cheap cigarettes and the possibility of future rewards who introduced guns into the conversation.

"To say 'do you want guns?', we say is entrapment," Mr Pownell said.

Mr Pownell said "the content of the crown case is all at sea" and that during the month-long trial they had attempted "through their witnesses to re-write history".

Witnesses, he said, agreed that the nature of the MI5 undercover operation was either to get a lead on one of Kearns' co-accused, 43-year-old Paul Anthony John McCaugherty, or to investigate the workings of the Lurgan unit of the Real IRA.

Mr Pownell said it was never the intention to put Kearns on trial but once McCaugherty was arrested, he could only be prosecuted if the "tribunal of fact had to hear chapters one, two and three of this saga".

The lawyer said he was not making the case that there was insufficient evidence against Kearns but that that evidence was so discredited, that on the balance of probabilities there was an abuse, "and we say that abuse is entrapment".

Today the court will hear submissions from defence QC Aiden Coultan on behalf of McCaugherty, before prosecutor Gordon Kerr QC answers their legal arguments.

Both Kearns and McCaugherty from Beech Court, also Lurgan, are on trial with 41-year-old Dermot Declan Gregory, aka Michael Dermot Gregory, from Concession Road in Cossmaglen.

They deny a total of eight charges between them arising out of the MI5 two-year sting operation.

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