Prosecutions of Soldier B and Soldier F to be discontinued after PPS review

02 July 2021

The Public Prosecution Service today announced its intention to discontinue the prosecutions of two former soldiers in connection with separate killings in Londonderry.

The development includes a decision to withdraw proceedings against Soldier F, a former member of the military facing trial for two charges of murder and five of attempted murder on Bloody Sunday in January 1972.

Separately, proceedings will not be commenced against Soldier B who was to be prosecuted with the murder of 15-year-old Daniel Hegarty in July 1972, and of wounding with intent of his cousin Christopher Hegarty.

The decisions not to proceed with both cases were taken after careful consideration of the impact of a recent court ruling that evidence relied upon in the prosecution of two former soldiers known as Soldier A and Soldier C was inadmissible because of the circumstances in which it was obtained.

Given related evidential features across all three cases, a review of the available evidence against Soldier B and Soldier F was conducted to establish whether the Court’s ruling had any implications for the prospect of convictions in these cases.

This review process involved a team of senior experienced prosecutors working with the assistance of advice from independent Senior Counsel. After considering the full written judgement delivered by Mr Justice O’Hara in the case of Soldier A and Soldier C, delivered on 30th April 2021, it was concluded that there was no longer a reasonable prospect of key evidence in proceedings against Soldier F and Soldier B being ruled admissible at their trials and without this evidence the Test for Prosecution was no longer considered met.

Director of Public Prosecutions Stephen Herron, along with Deputy Director of Public Prosecutions Michael Agnew, this morning hosted private meetings in Derry with families of the deceased and victims directly affected by the two decisions. They were joined by Senior Counsel and other senior members of the two prosecution teams involved to outline a detailed rationale for the decisions.

The Director has today also published a detailed public statement explaining why the Test for Prosecution is no longer met on evidential grounds in both cases.

Mr Herron said: “I recognise these decisions bring further pain to victims and bereaved families who have relentlessly sought justice for almost 50 years and have faced many set-backs. It is clear to see how these devastating events in 1972, in which the families involved lost an innocent loved one, caused an enduring pain which continues to weigh heavily.

“The PPS has a duty to keep prosecution decisions under review and to take into account any change in circumstances as a case proceeds. The impact of this court ruling on these two cases was considered extremely carefully by my office with the assistance of advices from Senior Counsel. That led to the conclusion that a reasonable prospect of conviction no longer existed in proceedings against both Soldier B and Soldier F. In these circumstances, the prosecutions cannot proceed.  

“It is the role of a prosecutor to look at evidence and complex legal matters in an independent and impartial way, as happened in these reviews. This core duty to remain objective in all decision-making does not hinder us from recognising the extreme distress caused by these decisions today. We know that deep upset extends not just to the families and survivors we met with, but also to many in the wider community. In both cases, I would like to emphasise that this outcome does not undermine previous findings that those killed and injured in these tragic incidents were entirely innocent.

“The prosecution teams appreciated the opportunity to meet with those directly affected by the discontinuance of these proceedings.  As difficult as this news clearly was for them to hear, it was important to us to be there in person to explain in detail the reasons which led to the decisions.

“Legacy cases come with many challenges, particularly when they involve events which happened almost five decades ago and were not properly investigated at the time. It is particularly relevant in these two cases that contemporaneous accounts were obtained in circumstances that involved a denial of legal safeguards. The most formidable challenges in bringing modern day prosecutions in relation to legacy matters often come from issues that can be traced back to the original investigation.”

Mr Agnew said: “Along with the Director, I recognise what a painful day this is for the families and survivors we met with.

“As upsetting as this outcome is for them, I can assure the public that these decisions were taken only after a most careful consideration of all relevant legal matters by a team of experienced and senior prosecutors. All decision-making was independent, impartial and conducted fully in line with the PPS Code for Prosecutors.

“The Test for Prosecution involves a judgment as to how a prosecution will fare in the context of the adversarial trial process, and of the likely outcome. It was always recognised there were significant evidential challenges in both these cases. However, the ruling in the case of Soldiers A and C provided insight as to the way courts will view attempts to use compelled statements from 1972, or evidence in some way derived from them, in a criminal trial.  

“We carefully considered how the ruling affected the analyses we previously undertook in the cases of Soldier B and Soldier F as to the prospects of conviction.

“Whilst the circumstances of the two cases were different, and they were considered individually, in both it was concluded that there was no longer any reasonable prospect of conviction, and accordingly the Test for Prosecution was no longer met.”

ENDS

NOTES TO EDITORS: 

  1. A detailed public statement outlining the rationale for these decisions is available to read here.  
  2. On the 14th March 2019, the PPS announced its intention to prosecute one former soldier, known as Soldier F, in relation to events on Bloody Sunday in Derry on 30th January 1972. This included charges for the murder of James Wray and William McKinney, the attempted murders of Joseph Friel, Michael Quinn, Joseph Mahon and Patrick O’Donnell and a fifth charge of attempted murder of persons unknown. These proceedings are currently at committal stage at Londonderry Magistrates' Court and it is intended these will be withdrawn on a court date yet to be fixed.
  3. On the 15th April 2019, the PPS issued a decision to prosecute a former soldier, known as Soldier B, for the offence of murder in relation to the death of Daniel Hegarty (15) who was shot and killed by a member of an Army patrol on duty in the Creggan area of Derry on 31st July 1972. Soldier B was further charged with wounding with intent in respect of Daniel’s cousin, Christopher Hegarty, then aged 16, who was also shot and injured in the incident.  Committal papers had been prepared and arrangements were being made to serve these ahead of the defendant’s first court date when the decision to undertake the review of this matter was made.
  4. On 4th May 2021, the PPS decided to offer no further evidence against two former soldiers, known as Soldiers A and C, on trial at the time over the death of Joseph McCann in Belfast in 1972. The decision was taken after it was concluded by the PPS that there were no grounds to appeal a recent ruling by the trial judge that statements made by the two defendants to the Historical Enquiries Team (HET) in 2010 were not admissible and therefore could not be used at trial.
  5. After receiving the full written judgement delivered by Mr Justice O’Hara in relation to Soldiers A and C, the PPS examined whether it had any implications for proceedings against four former members of the military facing separate prosecution in relation to legacy killings by the Army.
  6. As a result of this consideration, it was determined that two of these cases – that of Soldier B and Soldier F – should be formally reviewed because of cross-cutting evidential matters.
  7. The remaining two military-related prosecutions are to continue towards trial after it was considered there were no evidential matters impacted by the Court ruling and therefore no grounds for review. These are the prosecution of Dennis Hutchings in relation to the attempted murder of John Pat Cunningham who was shot dead by an Army patrol in County Tyrone in June 1974, and the prosecution of David Jonathan Holden in relation to the killing of Aidan McAnespie in County Tyrone in February 1988.
  8. On the 14th March 2019, the PPS issued decisions not to prosecute 18 other suspects reported in connection with events on Bloody Sunday, including 16 former soldiers and two alleged Official IRA members. In light of ongoing Judicial Proceedings linked to the decisions taken in these cases and also the potential for today’s decision to be challenged by Judicial Review, the PPS will not be making any further comment on this case.
  9. All decisions by the PPS are taken are taken strictly in accordance with the PPS Code for Prosecutors.
  10. Media queries for the PPS should be referred to the Communications Unit by emailing ppspressoffice@ppsni.gov.uk inside office hours.