Advertisement

We need your help now

Support from readers like you keeps The Journal open.

You are visiting us because we have something you value. Independent, unbiased news that tells the truth. Advertising revenue goes some way to support our mission, but this year it has not been enough.

If you've seen value in our reporting, please contribute what you can, so we can continue to produce accurate and meaningful journalism. For everyone who needs it.

A plaque on the spot where Joe McCann was shot dead in April 1972 (PA)

What caused landmark legacy prosecutions against former British soldiers to collapse?

A judge’s ruling in the trial over the 1972 murder of Joe McCann has led to two other cases unravelling.

AN ADMISSIBILITY RULING by a judge in the trial of two former soldiers accused of a Troubles murder has triggered a chain of events that has led to the halting of two further legacy cases in Northern Ireland, including the only prosecution ever mounted over the notorious Bloody Sunday killings of 1972.

Here is an explanation of why the controversial prosecutions have unravelled.

What happened in the trial of Joe McCann?

Soldiers A and C, both former paratroopers, went on trial in April accused of murdering the 24-year-old Official IRA leader who was shot dead by soldiers as he attempted to evade arrest by a plain-clothed police officer in the Markets Area of Belfast in April 1972.

The trial before Justice O’Hara opened at Belfast Crown Court and heard a full day of evidence.

It then moved into a separate voir dire hearing to determine whether statements and interviews given by the ex-soldiers, who are now in their 70s, would be admissible as evidence.

The voir dire heard that the evidence implicating the defendants came from two sources.

The first was statements they made to the Royal Military Police in 1972 and the second was statements and interview answers they gave to a police legacy unit, the Historical Enquiries Team (HET), in 2010.

embedded5640761 Joe McCann’s widow Anne attended the trial when it opened at Belfast Crown Court in April (Mark Marlow/PA)

In an unequivocal ruling, Justice O’Hara found none of the evidence should be admitted to the trial, highlighting a series of deficiencies in the reliability of both the RMP and HET material.

With the Crown case hinging on the evidence no longer admissible at trial, the Public Prosecution Service (PPS) could not proceed without it. Having determined there were insufficient grounds to appeal against the judge’s ruling, prosecutors formally offered no further evidence and the soldiers were duly acquitted.

Why was the RMP evidence ruled unreliable?

This was due to a series of failings in the RMP process. The controversial practice of the military investigating its own actions in Northern Ireland was discontinued in 1973 amid concerns it was designed to ensure soldiers were protected from questioning by police so they could avoid prosecution.

Judge O’Hara branded the RMP procedure an “appalling practice” that denied the soldiers a series of basic legal safeguards. They were not interviewed under caution, they were not given access to legal representation, they were compelled to make the statements and the soldiers were not given an opportunity to explain why they had taken the actions they did. The circumstances amounted to “oppression”, rendering any confession made as unreliable in a court of law.

embedded5640776 A man wearing the beret of the British Parachute Regiment gave a thumbs up outside court after the case against the two veterans collapsed (PA)

What about the HET evidence?

The PPS accepted the inadmissibility of the RMP statements, in isolation, from the outset. However, prosecutors argued the information in the 1972 statements became admissible because they were adopted and accepted by the defendants during their engagement with the HET in March 2010.

Justice O’Hara not only dismissed that contention, claiming it was not tenable to put the 1972 evidence before the court “dressed up and freshened up with a new 2010 cover”, but he also raised concerns about the HET process itself.

He questioned whether the HET’s role was to conduct criminal probes or to fact-find to bring resolution and answers for bereaved families.

As such, the judge said there was ambiguity why former soldiers were being asked to participate in the process. Justice O’Hara said if evidence of criminal wrongdoing emerged in the HET process that should have been subjected to a formal investigation by the Police Service of Northern Ireland, rather than being used as a basis to mount a prosecution.

He noted that when Soldiers A and C were interviewed under caution by the HET, neither veteran was informed what criminal offence they were suspected of before they faced questions.

Why does the judgment affect the prosecutions against Soldier F and Soldier B?

While not exactly the same, the evidence against the former soldiers was of a similar nature to that ruled inadmissible in the Joe McCann trial. Following receipt of Justice O’Hara’s detailed written judgment, the PPS initiated formal reviews of the cases. The PPS is under an ongoing obligation to keep prosecutorial decisions under review to account for changing circumstances.

Soldier F/Bloody Sunday:

While the PPS has long acknowledged that free-standing RMP statements given by soldiers could not be used in evidence against them, in the Bloody Sunday case the PPS was attempting to use RMP statements given by other soldiers in the Bogside that day.

They were going to try to use the accounts of Soldiers H and G as hearsay evidence that Soldier F was in the area and had fired shots at the civil rights demonstrators. They believed the issues around oppression were not as compelling when dealing with statements that were not considered direct confessions to criminality.

embedded5640812 The ruling has halted the only prosecution ever mounted over the Bloody Sunday killings (PA)

They were going to ask the court to rely on the aspects of Soldiers H and G’s statements that claimed Soldier F was firing in Glenfada Park North when the victims were shot. Without that evidence, the PPS had no way of proving that basic, but absolutely crucial, fact.

Soldier B/Daniel Hegarty:

A pivotal piece of evidence in this case related to a statement Soldier B gave to the HET in 2006. In it, he admitted to firing the shots that hit Daniel and his cousin Christopher. He had also given a statement to the RMP in 1972 but prosecutors accepted that would have been inadmissible.

The 2006 HET statement was therefore the only evidence that could be used to identify Soldier B as the person who fired the shots. The PPS review concluded that deficiencies identified by Justice O’Hara in relation to the HET evidence in the Joe McCann case were also relevant to the 2006 statement in the Hagerty case.

With the prospect of that being ruled inadmissible as well, the Crown case against Soldier B fell away.

Is there any prospect of these decisions being revisited?

The families can attempt to challenge the PPS decisions by way of judicial review in the High Court.

The family of Daniel Hegarty successfully challenged a previous non-prosecution decision against Soldier B. Today, a lawyer for the Hegarty family called on the police to obtain a fresh statement from Soldier B – something they said could enable the prosecution to continue.

The McKinney family made clear today that they would be pursuing judicial review proceedings.

“The decision communicated today to the victims of Bloody Sunday represents another damning indictment of the British justice system,” William McKinney’s brother Mickey McKinney said.

“A mass murderer has been permitted to evade justice without even standing trial,” he added.

The Wray family indicated that they would not be taking further legal action, but would support other families who pursue that avenue.

The families of other victims of Bloody Sunday are currently taking action against the PPS for its decision to not mount prosecutions over the killings of their loved ones.

What about other legacy cases against former soldiers?

The Bloody Sunday and Daniel Hegarty cases are two of seven currently within Northern Ireland’s criminal justice system.

In four of the cases, decisions to prosecute had already been taken, while prosecutors are assessing the evidence in the other three cases ahead of issuing prosecutorial decisions.

All seven have been looked at again following the O’Hara ruling. Formal reviews were deemed necessary in the Soldier F and Soldier B cases – an exercise that led to the decisions to halt the proceedings.

It was quickly established that the other two live prosecutions do not rely on the type of evidence deemed inadmissible in the Joe McCann case and those prosecutions are therefore proceeding.

Those are the cases of Dennis Hutchings, who is accused of the attempted murder of John Pat Cunningham in Co Tyrone in 1974, and David Jonathan Holden, who is accused of manslaughter by gross negligence in relation to the 1988 shooting of Aidan McAnespie at a checkpoint close to the Irish border.

The other three cases – two involving the Army’s Military Reaction Force and the other a fatal shooting at a Cookstown hotel in 1980 – remain under consideration, with prosecutorial decisions not understood to be imminent. The findings of Judge O’Hara will be factored into those deliberations as prosecutors consider whether the test of prosecution has been met in each.

Close
6 Comments
This is YOUR comments community. Stay civil, stay constructive, stay on topic. Please familiarise yourself with our comments policy here before taking part.
Leave a Comment
    Install the app to use these features.
    Mute Willy Moon
    Favourite Willy Moon
    Report
    Oct 20th 2014, 5:33 PM

    The mind boggles, this should have started years ago, they will make a feck up of this also

    67
    Install the app to use these features.
    Mute Sean J. Troy
    Favourite Sean J. Troy
    Report
    Oct 20th 2014, 6:59 PM

    The main reason for this isn’t the environmental impact of drilling itself but of seismic sections.
    Basically, structural geologists on a vessel set off an underwater explosion which is loud enough to reverberate through the bedrock and bounce off layers. That’s how we know what rocks are where and where possible traps are etc.
    The problem with this is that these explosions are incredibly loud to animals who can pick up the frequencies. Especially cetaceans and pinnipeds. It’s believed that it disrupts migratory patterns.
    Ireland is unique in how rich our waters are with these particular families and their migration paths. It’s not just copy and paste from research done on other basins such as the North Sea, everywhere is unique and it requires due dilligence.

    49
    Install the app to use these features.
    Mute Rob Conneely
    Favourite Rob Conneely
    Report
    Oct 21st 2014, 2:04 AM

    They use a water or air cannon to create the noise, not explosives.

    2
    Install the app to use these features.
    Mute Ashley Bcloud
    Favourite Ashley Bcloud
    Report
    Oct 20th 2014, 5:49 PM

    They should do that years ago and don’t even thing about fracking, ban it!
    http://www.sgoal.org/Stop-fracking

    37
    Install the app to use these features.
    Mute Cowenwatch
    Favourite Cowenwatch
    Report
    Oct 20th 2014, 7:36 PM

    It occurred to me the other day that if they do decide to frack, they will need a company to generate lots of money to pay to have our water cleaned. Could be a million miles of the mark but is that what the beast of Irish Water is meant for???

    Fracking and Irish Water can f*ck off!

    20
    Install the app to use these features.
    Mute Sean J. Troy
    Favourite Sean J. Troy
    Report
    Oct 20th 2014, 7:53 PM

    I don’t think there’s anything inherently wrong with fracking when it’s well regulated and has proper oversight. The problem is that it just isn’t in the US. The horror stories happen because the companies do whatever the hell they like because there are no reglutions or risk of punishment.
    The same goes for GMOs. Again, nothing wrong with them and they will inevitably be ubiquitous to increase our agricultural productivity. But the complete lack of regulation and the delegation of oversight to the companies in question is a joke. Any tool, no matter how useful will be corrupted and tainted by big business which is unhindered and only looks to cut costs.
    Again, coal is another example. I personally don’t agree with it. But at least in the Ruhr it’s relatively safe and clean. In Kentucky, the coal companies are allowed to blow up entire mountains if it will save money.

    15
    See 5 more replies ▾
    Install the app to use these features.
    Mute Cowenwatch
    Favourite Cowenwatch
    Report
    Oct 20th 2014, 8:04 PM

    I don’t know Sean, a whistleblower within the Encana Corporation let it out that up to 80% of concrete casings used in the fracking process were leaking. They just can’t be sure since it’s all underground. But, we can safely say there will be leaking of some amount given the high pressure the liquids used are pumped through the pipes. In a country the size of Ireland we can’t take that chance. A couple of companies have applied for a license to frack in the Bog of Alan and, if it does go ahead, they could contaminate a sizable proportion of the water table pretty much in the center of Ireland.

    There are a lot of regulations and measures in place to make it as safe as possible but all it takes is one f*ck up. I have a cousin in Canada who said the place is destroyed over there with it and, while this isn’t Canada, I think it’s only asking for trouble.

    14
    Install the app to use these features.
    Mute Sean J. Troy
    Favourite Sean J. Troy
    Report
    Oct 20th 2014, 8:15 PM

    I agree. Fracking does not have a good record so far. But what energy form does?
    It’s up to the industry to reform and dramatically improve safety standards which they are more than capable of doing of it’s required to get the licenses.

    8
    Install the app to use these features.
    Mute Cowenwatch
    Favourite Cowenwatch
    Report
    Oct 20th 2014, 8:26 PM

    That’s pretty much the crux of the issue, how to sustain ourselves and leave as little a impact on the earth as possible. Hopefully with developments in technology we’ll be ok!

    10
    Install the app to use these features.
    Mute Sean J. Troy
    Favourite Sean J. Troy
    Report
    Oct 20th 2014, 8:29 PM

    We’ll have fusion before I’m dead. I’m fairly optimistic. It look us longer to go from ballooning to powered flight than it did to go from powered flight to landing on the moon. Our technological prowess is growing at an exponential rate.

    5
    Install the app to use these features.
    Mute Philip O'Dowd
    Favourite Philip O'Dowd
    Report
    Oct 21st 2014, 7:24 AM

    GMO have nothing to do with feeding people. Sure the people need feeding cant afford the food. We throw away around 40 odd % of our food as waste. We don’t need more food, better ways of using it is needed. GMO’s are about food ownership by corporations and control of food.

    1
    Install the app to use these features.
    Mute Gavin Daly
    Favourite Gavin Daly
    Report
    Oct 20th 2014, 6:08 PM

    To prevent the catastrophic scenario of a planet heated by more than 2 degrees Celsius, 80 percent of the world’s current fossil fuel reserves need to stay in the ground.

    36
    Install the app to use these features.
    Mute Sean J. Troy
    Favourite Sean J. Troy
    Report
    Oct 20th 2014, 7:00 PM

    The mind boggles when environmentalists get so many red thumbs. It paints a depressing picture of my fellow Irish citizens.
    Keep fighting the good fight Gavin, even if we disagree on certain issues.

    27
    Install the app to use these features.
    Mute Gavin Daly
    Favourite Gavin Daly
    Report
    Oct 20th 2014, 7:36 PM

    Thanks Sean, but I wouldn’t describe myself as an “environmentalist”; Just someone who takes scientific evidence seriously and is interested in the survival of humanity

    16
    See 8 more replies ▾
    Install the app to use these features.
    Mute Sean J. Troy
    Favourite Sean J. Troy
    Report
    Oct 20th 2014, 7:40 PM

    Well unfortunately scientific evidence would dictate that there’s no alternative right now. We either keep pumping CO2 into our atmosphere, go back to pre-industrial revolution ways or be realists whilst also being optimistic that the next Norman Borlaug is hard at work on our energy crisis.

    11
    Install the app to use these features.
    Mute Gavin Daly
    Favourite Gavin Daly
    Report
    Oct 20th 2014, 7:51 PM

    I dont agree that is what the science says, but in the current neoliberal hegemonic milieu, i do agree that the change required is impossible to achieve

    therefore, either way, we are headed back to pre-energy revolution ways- just a matter of when

    9
    Install the app to use these features.
    Mute Sean J. Troy
    Favourite Sean J. Troy
    Report
    Oct 20th 2014, 8:02 PM

    Well the Science is fairly clear. There is no way of producing the amount of energy we need at the price that fossil fuels give us.
    I’m more hopeful for the future, I’m optimistic about the NIF like we’ve talked about before. Skunkworks have even announced their own fusion reactor since we’ve last debated. We’re well on the way.

    http://news.yahoo.com/lockheed-says-makes-breakthrough-fusion-energy-project-123840986–finance.html

    I guess even the military industrial complex has a silver lining!

    2
    Install the app to use these features.
    Mute One-Off Ireland
    Favourite One-Off Ireland
    Report
    Oct 20th 2014, 8:08 PM

    That’s economics, not science. Most of the energy we produce is wasted. There are always choices.

    As for fusion, its a chimera, cannot be ramped up in the time needed and produces electricity, the world requires liquid fuel to maintain current economic output.

    6
    Install the app to use these features.
    Mute Sean J. Troy
    Favourite Sean J. Troy
    Report
    Oct 20th 2014, 8:27 PM

    I think it’s a myth that recycling and turning the lights off will be enough. Energy is wasted, true. We should work on reducing our energy demands. Which starts with giving up meat and reducing the amount of kids we have.
    Hydrogen fuel cells are already a real thing. They’re not yet cost effective though, and they don’t produce net energy. But they will become cheaper and more economical, and if you have a source of cheap and unlimited electricity then it doesn’t matter if hydrogen fuels consume more energy they produce. We only need them for convinience.

    2
    Install the app to use these features.
    Mute One-Off Ireland
    Favourite One-Off Ireland
    Report
    Oct 20th 2014, 9:56 PM

    Sean, with respect, that’s fantasy.

    Most of the energy is lost in Transformation and transmission, nothing to do with turning lights off. I respect the fact that you have ( blind) faith in mankind’s technological prowess, I don’t.

    6
    Install the app to use these features.
    Mute Sean J. Troy
    Favourite Sean J. Troy
    Report
    Oct 20th 2014, 10:00 PM

    I couldn’t agree more. That’s my point. People are being sold a lie that they can significantly reduce their energy consumption when they can’t. There’s a huge amount of loss that’s inherent within the system.
    It’s hardly blind faith to be optimistic about fusion. Humanity has a proven track record of solving problems. And we’ve already made huge progress.

    1
    Install the app to use these features.
    Mute One-Off Ireland
    Favourite One-Off Ireland
    Report
    Oct 20th 2014, 10:27 PM

    Humanity has a proven tack record of creating problems, many of which it could not overcome with technology, despite its hubris.

    The only lesson we can take from the past is that all former human civilisations collapsed, usually due to lack of resources or climatic changes. This one is less than a few hundred years old.

    Fusion is a pipe dream, a distraction and beyond our capabilities

    5
    Install the app to use these features.
    Mute Sean Delaney
    Favourite Sean Delaney
    Report
    Oct 20th 2014, 5:52 PM

    Fuk the wild life start finding oil and gas so we can become a rich country.

    33
    Install the app to use these features.
    Mute Willy Moon
    Favourite Willy Moon
    Report
    Oct 20th 2014, 5:58 PM

    Ya really think us poor Irish folk will get any benefits from it lol!! Think again, every Other Country In The World Would make the Irish government will cost us

    32
    Install the app to use these features.
    Mute Avina Laaf
    Favourite Avina Laaf
    Report
    Oct 20th 2014, 6:17 PM

    Ya cuz money trumps every other kind of richness right?

    23
    See 2 more replies ▾
    Install the app to use these features.
    Mute des
    Favourite des
    Report
    Oct 20th 2014, 7:14 PM

    Very well put

    7
    Install the app to use these features.
    Mute Rob Conneely
    Favourite Rob Conneely
    Report
    Oct 20th 2014, 8:10 PM

    To be fair once the pipelines and rigs are in place they become an artificial reef for fish and the rigs are homes to many birds.
    They attract so much fish that trawlers used to follow the pipelines. Now the oil companies employ fishermen as guard vessels to keep other fishermen away.

    8
    Install the app to use these features.
    Mute sean nihill
    Favourite sean nihill
    Report
    Oct 20th 2014, 6:12 PM

    They wasted away millions with water. If they struck the mother load of Oil they’d find a way to prevent the people from sharing. UH we have have a contract and are bound by it. We’ll end up paying for the most expensive oil in history. A few years back $200 a barrel was forecast. No prizes for guessing who’ll b first in queue.

    27
    Install the app to use these features.
    Mute Mike
    Favourite Mike
    Report
    Oct 20th 2014, 6:16 PM

    Look to the north sea. Plenty of countries can give all the information you want.

    19
    Install the app to use these features.
    Mute Get Lost Eircodes
    Favourite Get Lost Eircodes
    Report
    Oct 20th 2014, 7:41 PM

    Overseen by the same Dept. that are making a balls of postcodes, what could possibly go wrong?

    13
    Install the app to use these features.
    Mute Sheik Yahbouti
    Favourite Sheik Yahbouti
    Report
    Oct 21st 2014, 12:16 AM

    While I am very much in favour of such surveys of all of our resources I find the trumpeting about it a bit much. Successive Governments have failed to make any reasonable effort heretofore, so I’ll give one small cheer for this announcement.

    2
Submit a report
Please help us understand how this comment violates our community guidelines.
Thank you for the feedback
Your feedback has been sent to our team for review.

Leave a commentcancel