A specialist police team’s re-examination of the shooting of an Official IRA leader did not find new or compelling evidence to warrant a fresh criminal inquiry, a court has heard.
A former investigator with the team told the non-jury trial of two former paratroopers accused of Joe McCann’s murder that the 2010 exercise had not established a reasonable suspicion that the men were guilty of an offence.
The retired policeman was a civilian investigator with the Police Service of Northern Ireland’s arm’s length Historical Enquiries Team (HET) when they interviewed the two veterans 11 years ago.
They were originally invited to provide voluntary statements but were later interviewed under caution by the now-defunct HET as part of an agreement with their solicitors.
The investigator was questioned during a discrete legal process within the veterans’ trial around the admissibility of statements provided by the former soldiers about the 1972 shooting of 24-year-old Mr McCann in Belfast.
He told the voir dire hearing that the HET re-examination of the case had not established any “new or compelling” evidence which he believed would justify reopening the case.
“I couldn’t see any new or compelling evidence after interviewing the soldiers,” he said.
During questioning by counsel for Soldier C, the investigator said the established HET process was that, if new evidence emerged which justified a fresh investigation, the case was handed over to the PSNI.
He said he did not anticipate that the soldiers would be prosecuted on the basis of the interviews conducted by the HET and instead had “fully expected” the PSNI to carry out their own interviews if the case was reinvestigated.
Giving evidence to Belfast Crown Court via video-link, the investigator was questioned about the process involved in the taking of statements from paratroopers in 1972.
Counsel for Soldier A put it to the investigator that the statements were recorded as part of a military fact-finding exercise to determine what happened, rather than establish any potential criminal liability.
The lawyer said the soldiers were ordered to give the statements by superiors, did not have legal representation, were not interviewed under caution, and questions about whether the use of force was justified in the circumstances “just weren’t asked”.
The investigator agreed with her characterisation of the process in 1972.
The former HET investigator said a “proper police investigation” into the shooting was not undertaken at the time, with witnesses not traced and forensic and ballistic evidence not gathered.
Counsel for Soldier A suggested the servicemen had been asked to provide a “cursory account” of what happened in their 1972 statements.
“Yes, I would agree with that,” replied the investigator.
Counsel for Soldier A said the accused had suffered a stroke in 2005, resulting in memory loss.
She said that meant he had an “express lack of memory” about the events when he spoke to the HET in 2010.
Noting the format of the 1972 inquiries, the lawyer contended that Soldier A has never had the chance to provide an explanation or justification for his actions.
“He never had the chance to explain or defend himself because he couldn’t by the time you spoke to him,” she told the investigator.
Before the voir dire commenced on Tuesday, the court heard that the identity of a policeman who attempted to arrest Mr McCann moments before he was shot dead remains unknown.
The RUC Special Branch officer initiated a chain of events that resulted in the Official IRA commander being shot by soldiers as he tried to evade detention in the Markets area of Belfast.
The trial heard a statement provided by the plain-clothes RUC officer following the fatal shooting.
He had been travelling in a car in the area when his driver spotted Mr McCann, who was on the run from the authorities at the time.
After identifying the well-known republican paramilitary, the officer approached a nearby Army checkpoint manned by paratroopers and asked for their assistance as he attempted to detain Mr McCann.
Moments later the officer encountered Mr McCann in Joy Street and a brief scuffle ensued.
Mr McCann fled the scene, running off down Joy Street.
At that point soldiers opened fire, killing the Official IRA leader.
The trial of the two ex-paratroopers was told that the identity of the Special Branch officer remains a mystery.
“The officer is unidentified as to the investigation into this matter,” a prosecution lawyer told judge Mr Justice O’Hara on Tuesday morning.
The judge, who initially asked if the officer is now dead, replied: “How do we know anything about the truth of this statement if we don’t know who the person making it is?”
The Crown lawyer said the statement has a provenance and had been located in original case files which were re-examined by the HET team in 2010.
He said a “gateway” had been established to admit it as hearsay evidence to the trial with the agreement of both the defence and prosecution.
The statement was then read into the court record by the Crown lawyer.
In it, the officer said he had tried to detain Mr McCann, whom he described as being a “three-star suspect on the Army wanted list”, at the junction of Joy Street and Little May Street.
“I said ‘Joe McCann, I’m a police officer, take your hands out of your pockets’,” read the statement.
“The subject pushed hard against me and ran down Joy Street.”
The officer said Mr McCann “darted from side to side” as he ran away.
The officer said he dropped to the ground and called “Halt, halt”.
He said he heard similar calls from behind him, where the soldiers were positioned.
The officer said he then heard gunfire and saw Mr McCann fall to the ground.
In the statement, the officer said that, upon witnessing Mr McCann fall, he returned to his police vehicle.
He said he did not fire his pistol during the incident.
The court is due to sit again on Wednesday for further legal exchanges related to the voir dire process.