Ex-Troubles soldier Hutchings 'dismayed' after losing legal battle over attempted murder charge
An ex-soldier charged in connection with fatal shooting in Northern Ireland more than 40 years ago has lost a legal challenge to facing trial without a jury.
The High Court rejected claims by 76-year-old Dennis Hutchings that Northern Ireland's Director of Public Prosecutions wrongly decided the criminal case should be determined by a judge sitting alone.
Mr Hutchings expressed dismay at the verdict, claiming it failed to distinguish between members of the armed forces and paramilitaries.
Judges instead backed the Director's conclusion that the potential risk of a biased juror could threaten the administration of justice in Mr Hutchings' case.
The seriously ill pensioner, of Cawsand in Cornwall, is charged with the attempted murder of John Patrick Cunninghman.
Mr Cunningham, 27, was shot in the back as he ran away from a British Army patrol near Benburb, Co Armagh at the height of the Troubles in 1974.
He was described in court as an innocent, vulnerable and unarmed man who had a fear of people in uniform.
Mr Hutchings, who served in the Life Guards, was charged with attempted murder after the killing was re-examined by police.
It is alleged that he and another soldier both fired their guns, although it is not known who discharged the fatal bullet.
The decision to hold a non-jury trial was taken to guard against a potentially perverse verdict being reached.
Described as "dangerously ill" by his legal representatives, Mr Hutchings has yet to be arraigned.
His barrister argued that the decision was wrong in law and based on "bald assertions" about the risk to the administration of justice.
He told two senior judges that it had been an irrational conclusion without regard for the normalisation of security arrangements in Northern Ireland.
But counsel for the Director of Public Prosecutions countered that the 2007 Justice and Security (Northern Ireland) Act contains a wide-ranging condition for a non-jury trial.
Any indirect connection with political or religious hostility brings the case into that category, he contended.
The barrister cited opposition to British soldiers on the ground at the time, and a firefight between Mr Hutchings patrol and an IRA unit days earlier.
On that basis, it was submitted, the Director was entitled to examine the circumstances surrounding the shooting and conclude that it was a classic example of something linked to political hostility.
Backing that case, Lord Justice Gillen said: "It could not be plausibly disputed that the IRA as an organisation was politically hostile to another group of people who were opposed to the concept of a united Ireland and in that context attacks were made on members of the British army.
"The phrase 'political hostility' is in use daily in Northern Ireland and is easily understood."
The court ruled that the Director's decision was neither unreasonable not took into account irrelevant issues.
Lord Justice Gillen added: "We find no reason in this instance to dispute his conclusion that, where the context is of a soldier shooting an innocent bystander against the background of an IRA attack a short time before, this circumstance carries in its wake the risk of a partisan juror or jurors in at least parts of this province with all the attendant dangers of impairment of the administration of justice if that trial were to be conducted with a jury."
Reacting Mr Hutchings said: "They are classing service people as terrorists, because that's what the 2007 Act was brought in to prevent - terrorists from interfering with jury trials.
"As far as I'm concerned I wasn't involved in terrorism, I was there to do a job which was to prevent terrorism."
The former soldier also confirmed plans to consult with his lawyers about any potential challenge to the outcome.
"If there's an option I will be appealing definitely," he added.
"I want to go to the Supreme Court and, if necessary, I will take it to the European Court."