Queen v Kearns (Desmond Paul), McCaugherty (Paul Anthony John) and Gregory (Dermot Declan) aka Michael Dermot Gregory
| Jurisdiction | Northern Ireland |
| Judge | Hart J |
| Judgment Date | 17 June 2010 |
| Neutral Citation | [2010] NICC 32 |
| Court | Crown Court (Northern Ireland) |
| Date | 17 June 2010 |
1
Neutral Citation No. [2010] NICC 32 Ref:
HAR7906
Judgment: approved by the Court for handing down Delivered:
17/6/2010
(subject to editorial corrections)
IN THE CROWN COURT IN NORTHERN IRELAND
BELFAST CROWN COURT
________
THE QUEEN
v
DESMOND PAUL KEARNS, PAUL ANTHONY JOHN McCAUGHERTY
AND
DERMOT DECLAN GREGORY
(otherwise known as MICHAEL DERMOT GREGORY)
________
HART J
[1] At the conclusion of the prosecution case applications were made on
behalf of Kearns and McCaugherty that the court should stop the prosecution of
each defendant on the basis that each had been entrapped by the State into
performing the actions that the prosecution allege constitute the offence with
which each is charged. As these applications have been made at the conclusion
of the prosecution case, neither defendant has been called upon to say whether
he intends to give evidence, and as neither answered any material question put
to them in interview after their arrest neither has advanced any evidence to
support this assertion. Both rely on what are alleged to be indications in the
prosecution evidence that they were entrapped.
[2] I have had the benefit of detailed and comprehensive written submissions
from the defence and the prosecution, and whilst I do not intend to refer to each
and every one, I have considered them together with the exhibits and the
portions of the transcripts to which they have referred. When a court has to
consider allegations by a defendant that he acted as he did because he was
entrapped into doing so by an agent of the State acting as an agent provocateur
it is common ground that the court must approach this question by applying the
principles laid down by the House of Lords in R-v-Loosely [2002] 1 Cr App R, 29
at p360 in which the leading judgments were given by Lord Nicholls, Lord
Hoffman and Lord Hutton.
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[3] The fundamental distinction addressed by the principles set out in
R-v-Loosely is whether the defendant has been prosecuted for an offence that was
artificially created by the misconduct of agents of the State, usually law
enforcement officers, or whether their actions did no more than offer the
defendant an opportunity to commit that offence and the defendant freely took
advantage of that offer. If the court concludes that the conduct of the officers
amounted to the first alternative then, depending upon the point the
proceedings have reached, it is open to the court to stop the prosecution by
staying the proceedings on the grounds of an abuse of process, or by applying
the principles applicable to a stay and excluding the incriminating evidence by
virtue of Article 76 of the Police and Criminal Evidence (Northern Ireland)
Order 1989 (the 1989 Order). As Lord Scott pointed out at page 401 in
R-v-Loosely: "The Court's decision to allow the accused go free is based upon his
disapproval of the behaviour of the police officers, not upon the prosecution's failure to
establish those ingredients" of the offence.
[4] At p391 and 392 Lord Hutton referred to the need for the court to carry
out a balancing exercise in each individual case and having agreed with the
approach formulated by McHugh J in the Australian case of Ridgeway -v- The
Queen said:
“In balancing the relevant factors the English courts
have placed particular emphasis on the need to
consider whether a person has been persuaded or
pressurised by a law enforcement officer into
committing a crime which he would not otherwise
have committed, or whether the officer did not go
beyond giving the person an opportunity to break the
law, when he would have behaved in the same way if
some other person had offered him the opportunity to
commit a similar crime, and when he freely took
advantage of the opportunity presented to him by the
officer.”
[5] The distinction between conduct of law enforcement officers that is
permissible and that which is not was more pithily stated by Lord Hoffman
when he referred at page 381 to –
“A more general concept of conduct which causes the
defendant to commit the offence as opposed to giving
him an opportunity to do so.”
[6] Their Lordships identified a number of circumstances that are of
particular relevance in the present case:
1. The nature of the offence. The use of proactive techniques is more
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Queen v Jones (Gary) Ruling No 3: Abuse of Process
...to prove beyond reasonable doubt that the alleged circumstance did not exist”. Very recently, in The Queen –v- Kearns and Others [2010] NICC 32, Hart J expressly concurred with this approach: “[19] I agree that it is for the prosecution to prove beyond reasonable doubt that the alleged circ......