Ex-soldier fails in bid to stall 1974 killing trial
A FORMER soldier facing prosecution over a fatal shooting during the Troubles has lost a bid to bring a High Court challenge over alleged discrimination against veterans.
Dennis Hutchings (79) is due to stand trial in Belfast on charges of attempted murder and attempted grievous bodily harm with intent over the death of John Pat Cunningham in in 1974.
Mr Cunningham, a 27-year-old man with learning difficulties, was shot in the back as he ran away from an Army patrol near Benburb, Co Tyrone.
Hutchings, from Cawsand in Cornwall, a former member of the Life Guards regiment, has previously unsuccessfully attempted to stay his prosecution as an abuse of process, and also lost a Supreme Court challenge to have a trial before a jury.
He then took legal action against the Government, claimrister ing that it has failed to protect veterans from “ongoing discriminatory treatment by the criminal justice system” in Northern Ireland.
Hutchings also claimed that proposed legislation means those who served during the Troubles will not receive the same protection as those who served overseas.
At a remote hearing conducted yesterday, Hutchings’ barAusten Morgan argued ex-soldiers were unlawfully being treated differently to terrorists.
Mr Morgan told the court that of more than 3,500 people killed between 1966 and 2006, roughly 60% were killed by republican paramilitaries, 30% by loyalists and 10% by soldiers or the police.
He argued “one would expect prosecutions in Northern Ireland — if not convictions — to be running, from 1998, at very roughly a 60%/30%/10% proportion”.
But, Mr Morgan added, while there have been prosecutions of republicans and loyalists for crimes committed before the signing of the Good Friday Agreement in 1998, “there are no comparable lists of pending terrorist prosecutions”.
He submitted that “a former soldier is 54 times... more likely to be prosecuted than a republican or loyalist terrorist”.
He also argued that Hutchings was treated differently to John Downey, a convicted IRA member suspected of carrying out the 1982 Hyde Park bombing whose criminal trial collapsed in 2014.
Mr Morgan said Hutchings was given a letter by an Army lawyer in 1974 stating he would not be prosecuted, but his application to stay his prosecution on the letter’s basis was rejected.
Downey’s prosecution, however, collapsed after it was revealed he received a written assurance from Tony Blair’s Government — under the terms of the controversial ‘on-the-runs’ scheme — that he was no longer wanted.
Mr Morgan also said the Government “made an error of law” when it agreed a deal with the Irish Government to restore Stormont as it broke the Conservative Party’s manifesto pledge to “do more to give veterans the protection they deserve”.
Naina Patel, for the Government, said Hutchings’ contention the Government appeared to “resile from those alleged promises in relation to Troubles-related prosecutions of British Army veterans” was unarguable.
She added: “Since prosecutorial decisions are taken independently of Government and have been a devolved matter in Northern Ireland since 2010, the Secretary of State is not responsible for the decision to prosecute the claimant in 2015.”
Dismissing Hutchings’ application for permission to bring a judicial review, Mr Justice Lewis ruled his case was unarguable.
He said: “This is a claim against the Secretary of State for Northern Ireland, (but) he is not the body responsible for dealing with prosecutions of people in Northern Ireland.”
The judge added that there was no “inconsistency” between the Conservatives’ manifesto pledge and its agreement with the Irish Government, stating that they were both “general statements of political intent”.
After the ruling Hutchings, who is considering an appeal, said: “To say that I’m disappointed in our legal system would be choosing my words carefully.”