Calls for entrapment trial to be thrown out

The prosecution case against two Armagh men facing charges arising out of a sting operation by MI5 (British military intelligence) should be thrown out, their lawyers have argued.

Defence QC Orlando Pownell told the trial judge that it would be an “abuse of process” to continue with the Belfast Crown Court trial of 44-year-old Lurgan man, Desmond Kearns

Mr Pownall said Mr Kearns was entrapped by MI5 operatives as part of an initial intelligence gathering operation by the Crown forces against an alleged 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’, an MI5 ‘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 added, 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.

Last week it emerged that ‘Amir’ and other MI5 agents were paid performance bonuses of thousands of pounds, regardless of the innocence or guilt of those targeted.

Amir had earlier accused MI5 of betrayal when, despite earlier assurances, he was ordered to give evidence against the Armagh men. He claimed he had also been promised a medal from the English queen, and demanded 650,000 pounds from MI5 for testifying in the case.

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, Paul McCaugherty, or to investigate the workings of the Lurgan unit of the Real IRA.

Mc 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 that the evidence was so discredited, that there was an abuse, “and we say that abuse is entrapment”.

Judge Hart, trying the month-long case in the (juryless) Diplock court, said he hoped to give his ruling within a few days.

Defence QC Adrian Colton, representing Mr McCaugherty, said the application to halt the case related not to his client’s innocence or guilt but to the “integrity of the trial process”.

“The issue of the defendant’s guilt, or the issue of a fair trial is not at stake in this application but the process of the criminal justice system,” Mr Cotton said, adding that guilt “Is irrelevant as to whether a stay should be granted or not”.

McCaugherty, he said, was clearly a “specific target of this operation” and that the initial “targeting of Kearns was designed to lure McCaugherty into crime”.

Mr Colton said that the under-cover operation was “a tainted operation” as it had gone beyond “the permissible bounds”.

Judge Hart, trying the month-long case in the (juryless) Diplock court, said he hoped to give his ruling within a few days.

Urgent Appeal