Ex-soldier Dennis Hutchings 'cannot get a fair trial'
- Published
Dennis Hutchings from Cornwall has been charged with attempted murder
A former British soldier charged with the attempted murder of a man in Northern Ireland cannot get a fair trial, his lawyers have claimed.
John Pat Cunningham, 27, who had learning difficulties, was shot in the back as he ran away from an Army patrol near the village of Benburb in 1974.
An abuse of process hearing took place in Belfast on Friday.
A lawyer for Dennis Hutchings, 76, from Cawsand, Cornwall, said it was unfair to try his client.
The judge adjourned the hearing until next month to allow the prosecution time to consider and respond to the defence arguments.
Earlier, the lawyer said that Mr Hutchings was suffering from an "incurable chronic kidney disease".
He said that "proceedings should be stayed" as his client "cannot get a fair trial, and secondly it is unfair to try him".
The lawyer accepted that the granting of such applications "is an exceptional remedy", however he claimed that given the length of time since the shooting and other material matters, his client had been "extremely prejudiced",
He added that there "is nothing the court can do to mitigate this prejudice".
John Pat Cunningham was 27 at the time of his death, but had a mental age of between six and 10
The lawyer said that while his client had made no direct admission of opening fire, he had fired three warning shots during the incident, while two others were fired by a second soldier in the 10-man patrol.
He said that while the prosecution may say they were aimed shots, "we say they were warning shots".
The lawyer said that initially Mr Hutchings "was explicitly told" that he would not face a trial and prosecution, but that now the Director of Public Prosecutions had decided to overturn that commitment.
"That promise not to prosecute was unequivocal and in writing," he added.
The lawyer said that, to date, neither Mr Hutchings or his defence team had been told why, or given any "explanation for the change of opinion".
He also told the court that no new evidence, possibly affecting the decision, had since come to light in the proceeding 43 years, and it appears that having been told "there is no prosecution, and then years later, after material has been lost, (Mr Hutchings is told) 'oh you are going to be prosecuted'".
Claiming that the prosecution "have manipulated proceedings", the lawyer also accused the authorities of having "waited until evidence is lost, witnesses have died and memories have faded".