Veteran fails in bid to halt his trial for murder of boy
A FORMER soldier has lost his legal battle to avoid being prosecuted for the murder of a teenage boy in Londonderry 48 years ago.
The ex-serviceman claimed the decision to charge him over the killing of Daniel Hegarty put him at heightened risk of sudden death due to ill-health. But High Court judges yesterday rejected a challenge based on an alleged breach of his right to life.
Lord Justice Treacy ruled that accepting his case would have meant far-reaching repercussions for the criminal justice system and potential immunity for any suspect with a medical complaint.
He said: “If correct, a serial killer or rapist could not lawfully be prosecuted if the medical evidence established that a decision to prosecute would expose him to that risk.”
Daniel (15) was shot twice in the head during an Army operation in the Creggan area of the city in July 1972.
In April 2019 the Public Prosecution Service (PPS) announced that the military veteran, referred to as Soldier B, is to be charged with his murder.
He is further accused of intentionally wounding Daniel’s cousin Christopher Hegarty, then aged 17, in the same incident.
The killing occurred during Operation Motorman, when British troops were deployed in Derry at the height of the Troubles to clear so-called no-go areas.
In 2011 an inquest jury unanimously found Daniel posed no risk and had been shot without warning.
Five years later a decision was taken not to prosecute Soldier B.
But in May 2018 the High Court quashed that determination following legal action by the Hegarty family.
The current Director of Public Prosecutions for Northern
Ireland, Stephen Herron, then carried out a review of the case before announcing charges are to be brought.
Lawyers representing the former soldier sought a judicial review of those decisions, claiming they violated Article 2 of the European Convention on Human Rights.
Reporting restrictions imposed earlier in the case were lifted to enable publication of full details of the challenge.
It was claimed that prosecutors failed to take Soldier B’s health into account.
However, Lord Justice Treacy, sitting with Mr Justice O’hara and Sir John Gillen, found that the DPP had carefully considered his condition.
Medical reports indicated the consequences of the decision to prosecute Soldier B would be more frequent chest pain and an “unquantifiable” increased risk of sudden death.
A doctor noted that no one could predict when the deterioration in heart failure may occur, the court heard.
Describing the challenge as “bold”, Lord Justice Treacy said, if successful, prosecutors could be inundated with medical reports from suspects trying to persuade them that they should not face trial.
‘If correct, a serial killer or rapist could not lawfully be prosecuted if medical evidence established that a decision to prosecute would expose him to that risk’
Proceedings might also be hit by delays, endangering confidence in the criminal justice system.
“If the argument of the applicant were accepted it would confer de facto immunity on any suspect with a medical condition capable of similarly increasing
risk, consequential upon higher levels of stress resulting from a decision to prosecute,” he said.
“Furthermore, if the applicant’s contention was right, the increase in the risk of death arising from the prosecution could as a matter of principle be deployed more than once.”