An official move to halt the trial of a former soldier for two deaths on Bloody Sunday is set to be postponed to facilitate a legal challenge to the decision.
The Public Prosecution Office of Northern Ireland was due to withdraw proceedings against Private F at Derry Court of First Instance tomorrow.
PPS said it will now request an adjournment of the hearing after the brother of one of the victims obtained injunctions to challenge the plaintiffs’ decision at a Supreme Court hearing in the fall.
A lawyer representing Private F to the High Court in Belfast said today he would not oppose tomorrow’s adjournment request in Derry, given the court’s assurances that the legal appeal in September would be expedited.
The veteran was facing charges of the murders of James Wray and William McKinney on Bloody Sunday in Derry on January 30, 1972, when troops opened fire on civil rights protesters in the city’s Bogside, killing 13 people.
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The former paratrooper has also been accused of attempting to assassinate Patrick O’Donnell, Joseph Friel, Joe Mahon and Michael Quinn.
He faced another support charge of attempting to kill an unknown person or persons on the day in Derry.
Last week, PPS announced that the case against Private F.
The Family Protection Service said that the trial of another veteran soldier, Private B, for the murder of 15-year-old Danielle Hegarty in Derry later in 1972, would also not proceed.
These decisions came after the Palestinian Police Department reviewed the cases in light of a recent court ruling that caused the collapse of another trial in a troubled crime involving two military veterans.
The Crown cases against both Private F and Soldier B hinged on evidence of a similar nature to the inadmissible trial of Private A and Private C in April for the murder of official IRA commander Joe McCann in 1972 in Belfast.
Faced with the possibility that this type of evidence would not be admissible again in any future trial, PPS declared a moratorium on prosecutions, claiming that there was no longer a reasonable prospect of indicting Private F or Private B.
Judicial review
McKinney’s brother Mickey has appealed the PPS decision to halt the trial of Private F.
Today, two judges at the District Court of the High Court in Belfast granted leave for McKinney to appeal the decision via judicial review in September.
After the leave was granted, Mrs. Judge Keegan, seated with Mr. Judge Horner, told PPS counsel that it would be «practical, purposeful and beneficial» if the timetable for the prosecution’s withdrawal was reconsidered to reflect the decision to allow a legal appeal.
After seeking instructions from his client, attorney Dr. Tony McGlinan QC told the court that PPS would seek to adjourn tomorrow’s hearing.
He explained that the PPS Act obliges plaintiffs to return cases to court when a decision is made to withdraw proceedings.
«Granting the permission in this case changed the situation very dramatically in this regard and changed the situation with respect to the law as well,» he said.
So the position that PPS has taken is that they will appear tomorrow before District Judge Magill and will file a motion to delay referral proceedings until September.
He noted that the issue of adjournment was not entirely in the hands of PPS and a district judge would have to consider the matter on Friday given the position of Solider F’s legal team.
Mark Mulholland QC, representing Private F, told the District Court today that he will not seek to oppose the postponement.
He said he did not «give up» his position regarding the delays potentially hurting his client, but acknowledged that the District Court’s intent is to deal with judicial review quickly.
“I feel that given the limitations of that (judicial review) and that it has to be reconsidered in a very short time frame, I certainly would not seek to oppose the adjournment request tomorrow in court,” he said.
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Mrs. Keegan welcomed the postponement as a «short-term decision».
Why is the evidence inadmissible?
Judge O’Hara deemed two different sources of evidence inadmissible in his hugely important April 30 ruling that led to the collapse of Joe McCann’s trial.
The first is affidavits taken from two soldiers charged by the Royal Military Police (RMP) in 1972.
The judge ruled them unreliable because soldiers were denied many basic legal rights and safeguards when making statements to the Royal Military Police, including an official warning and access to legal representation.
The second source of evidence that was found to be inadmissible was last-day evidence emanating from the veterans’ 2010 involvement with a specialized police unit investigating older cases, the Historic Investigation Team (HET).
Judge O’Hara said it would be unfair to admit this as evidence due to the ambiguity about HET’s purpose, for fact-finding or criminal investigations, and the fact that defendants were not informed of the suspected crime when they were warned.
The case against Private F for the Bloody Sunday crimes hinged on the contents of statements taken by the Royal Military Police from two other soldiers involved in the events of Bloody Sunday.
Without these statements, the Crown decided it would not be able to prove that Private F was in Bogside when the shots were fired.
Families of other Bloody Sunday victims have already obtained permission to challenge PPS decisions and not file lawsuits over the murder of their loved ones.
As this case also focuses on issues around the admissibility of RMP data, McKinney’s appeal is to have her and another related case heard in the District Court at the end of September.
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