Queen v (1) SOLDIER A (2) SOLDIER C
| Jurisdiction | Northern Ireland |
| Judge | Maguire J |
| Judgment Date | 30 January 2020 |
| Neutral Citation | [2020] NICC 6 |
| Court | Crown Court (Northern Ireland) |
| Date | 30 January 2020 |
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Neutral Citation No: [2020] NICC 6 Ref:
MAG11092
Judgment: approved by the Court for handing down Delivered:
30/01/2020
(subject to editorial corrections)*
17/122172
IN THE CROWN COURT FOR NORTHERN IRELAND
SITTING AT LAGANSIDE
________
BETWEEN:
THE QUEEN
v
(1) SOLDIER A
(2) SOLDIER C
Defendants
________
MAGUIRE J
Background
[1] In this case, the two defendants each seek from the court a stay of the
proceedings against them. The proceedings as constituted are said to represent an
abuse of process.
[2] The charge found in the Bill of Indictment which the defendants face, in its
material part, reads:
“Charge
Soldier A and Soldier C are jointly charged with the
following offence:
First Count – statement of offence – murder, contrary to
common law.
Particulars of Offence – Soldier A and Soldier C, on
15 April 1972, murdered Joseph McCann.”
[3] A summary of the grounds upon which the application of each is based can
be taken from the joint skeleton argument for the defendants. It reads:
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“In summary, the defendants submit that:
(a) It will be impossible for them to receive a fair trial.
Due to the delay of over 47 years since the incident took
place and the inadequacy of the investigation in 1972,
directly relevant evidence has been lost. In particular:
(i) Soldier B, who most probably caused the
fatal wound to Mr McCann has died without ever
providing a proper account of his actions.
(ii) Key witnesses are either unavailable or
unable to recollect the incident and statements
taken at the time are insufficiently detailed. The
identities of members of the security forces present
were not recorded. Policeman B, who spoke to
Soldier B immediately before he shot at
Mr McCann, cannot be traced.
(iii) The defendants cannot remember the
precise events or details relevant to their defences.
The opportunity to interview the defendants fully
and under caution has been lost.
(iv) There is little or no forensic evidence and
the opportunity to analyse the rounds fired and
injuries sustained has been lost.
There is a significant and demonstrable chance
that the missing evidence amounts to decisive or
strongly supportive evidence on specific issues,
such as the circumstances as the defendants
perceived them to be for the purposes of their
defences. The inconsistencies and lack of detail in
the documents available mean it is impossible to
compensate for the evidence that is no longer
available, or was never obtained. The prejudice to
the defendants would be so serious that there are
no measures that could remedy the defects at trial.
(b) It would be unfair for them to be tried. The
defendants received unequivocal representations that
they would not be prosecuted in 1972. The 1972 decision
by the DPP endorsed by the AG, was reviewed by the
DPP in 1973 and was based upon the conclusion that
there was no sufficient likelihood of conviction to
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warrant a prosecution. The defendants were led to
believe that the Historical Enquiries Team (“HET”)
process in 2010 was intended to bring some form of
resolution to the family of Mr McCann and were
reassured that they would not be prosecuted in the
absence of fresh evidence. They acted upon those
representations to their detriment by providing
statements under caution about the incident to HET and
not retaining or preserving evidence to support their
defence in the intervening years. The subsequent
decision to prosecute is not predicated on any material
change in the evidential position, but relies on a fresh
assessment on the likelihood of conviction. The
prosecution also fails to recognise the improprieties of the
HET process and calls into question the integrity of the
justice system. The review of the decision not to
prosecute appears to have been taken in a manner that
violates the principles on review in the Code for
Prosecutors. In particular the reference of the case to the
DPP in 2014 was unprincipled.”
[4] The court heard the abuse of process application for just over a day in
December 2018 but, as a result of disputes which arose about disclosure of
documents, at the request of the parties, the court agreed to adjourn the application
in the hope that such matters could be resolved as between the prosecution and the
defendants.
[5] No agreement was in fact arrived at and while the width of the gulf between
the parties in respect of disclosure was narrowed, ultimately the defendants made an
application in respect of disclosure to the court. This application was heard in
May 2019 and the court provided a ruling in respect of this matter at the beginning
of July 2019.
[6] The hearing of the abuse of process application resumed in these
circumstances and occupied 2 days towards the end of September 2019. In these
proceedings Soldier A is represented by Clare Montgomery QC and Helen Law BL.
Soldier C is represented by Liam McCollum QC and Ian Turkington BL. The
prosecution is represented by Louis Mably QC and Samuel Magee BL. The court
wishes to express its gratitude to counsel for their helpful and able written and oral
submissions.
Chronology of Events
[7] In order to set the defendants’ application in context, it is necessary for the
court to provide a chronology of the main landmarks relevant to the evolution of
events in this case. The court will seek to do this succinctly but it should not be
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