A senior judge has said he found it “remarkable” that two soldiers were neither arrested nor interviewed by police before being put on trial for murder.
Mr Justice O’Hara expressed his surprise during an application to have evidence excluded from a non-jury trial he is presiding over.
Noting that without this evidence the case could collapse, the Judge said he would give his ruling on the application tomorrow morning.
Soldiers A and C — who are now in their 70s — are currently standing trial at Belfast Crown Court on a charge of murdering IRA man Joseph McCann in April 1972.
The 24-year old was fatally wounded after he was shot by paratroopers whilst evading arrest in the Markets area of Belfast.
Both defendants have admitted firing a shot at the fleeing and unarmed Mr McCann as he ran down Joy Street.
The two soldiers were interviewed about the fatal incident in 1972 by the Royal Military Police. They were questioned again by the Historical Enquiries Team in 2010 — and it is these interviews which were the subject of the legal application.
Barristers for both men have asked that the interviews, which form a substantial part of the Crown’s evidence in the trial, must be excluded.
It has already been established that in 1972 the soldiers were informed they would not be prosecuted. They spoke to an investigator with the HET in 2010 for a report into the incident, and a decision to charge them with murder followed.
The HET investigator said that on foot of his report he didn’t expect the two former soldiers to be prosecuted, and that before they were charged with murder, they were not interviewed about the incident by the PSNI.
After a Crown barrister confirmed that neither Soldier A nor Soldier C has ever been spoken to by police, Mr Justice O’Hara said: “I find it a remarkable feature of this case that they were not interviewed by the PSNI and they were not arrested, but are in court on trial for murder.”
The defence have argued that the interviews conducted with Soldiers A and C in 1972 are inadmissible.
A barrister for Soldier A said the interview conducted with her client in 1972 was oppressive, conducted without any knowledge of his legal rights and “where they deliberately didn’t ask his justification for the shooting”.
Pointing out that at the time Soldier A was a 22-year old “lowly ranking corporal” who was interviewed by a senior figure within the Army, the barrister said that when he was spoken to again by HET in 2010, he had little recollection of the shooting as a stroke in 2005 had affected his memory.
Calling for both interviews to be excluded from evidence, the barrister said Soldier A was not given the opportunity to defend himself and explain his actions in 1972 — and when asked again in 2010 he was not able to due to lack of memory.
The barrister representing Soldier C also cited oppression linked to the 1972 statements and questioned their legality.
He asked Mr Justice O’Hara to consider whether or not the HET interviews should be admitted as evidence, saying “that process was tainted by the oppressive initial statements”.
Responding to the defence submissions, a Crown barrister said it was accepted that in a case dating back to 1972, there were “limitations” when it came to evidence.
And when he was asked by Mr Justice O’Hara if “without the interviews, the case would fall?”, the prosecutor replied “on that basis My Lord, yes”.
Branding the procedures in 1972 as “pretty hopeless and inadequate”, Mr Justice O’Hara expressed surprise that neither of the men currently on trial for murder were arrested or interviewed by the PSNI about the incident.
The Judge said he wanted to think about the submissions overnight and would give his ruling on the application at 11am on Friday.