A former British soldier facing prosecution over a shooting during the Troubles has lost a Supreme Court bid to have his trial heard by a jury.
Dennis Hutchings (78), a former member of the Life Guards regiment, is charged in relation to the fatal shooting of a man with learning difficulties in Co Armagh.
John Pat Cunningham was killed in disputed circumstances in June 1974. The 27-year-old was shot in the back as he ran away from a British army patrol which was commanded byh Mr Hutchings.
His family contend that he ran across a field because he feared men in uniform. More than 40 years on, a case was brought against Mr Hutchings after Northern Ireland’s attorney general asked prosecutors to review the case.
The Director of Public Prosecutions for Northern Ireland can direct a defendant be tried by a judge alone, in what was formerly known as a Diplock court, where a charged offence was "committed to any extent... as a result of, in connection with or in response to religious or political hostility".
Prosecutors directed Ms Hutchings’ trial be heard by a judge alone after concluding that there was “a risk that the administration of justice might be impaired if the trial were to be conducted with a jury”.
Ms Hutchings, from Cawsand in Cornwall, appealed against the decision, but on Thursday the UK’s highest court dismissed his case.
Giving the court’s unanimous judgment in London, Lord Kerr ruled that it was “entirely unsurprising” prosecutors decided there could be a risk of a biased juror or jury.
The judge said there was “no fundamental right” to have a trial by jury, adding: “The fundamental right is to a fair trial.”
The judge noted Mr Hutchings’ patrol had been involved in a “firefight” with members of the Provisional IRA (PIRA) two days before the fatal shooting.
Lord Kerr added: “That the soldiers who fired on Mr Cunningham suspected that he was a member of the PIRA seems inescapable.”
In a statement after the ruling, Kevin Winters of KRW law, which represents Mr Cunningham’s family, said: “This is a welcome judgment from the UK Supreme Court for the family of John Patrick Cunningham.
“It illustrates the importance of the judiciary upholding contested decisions by law officers such as the Director of Public Prosecutions.”
He added: “This will be a fair trial before a judge and will be about justice not retribution.” – PA