High Court rules against prioritisation of new Kathleen Thompson police probe

Kathleen Thompson with her family before her death in 1971 during an army raid in the Creggan area. The mother-of-six was shot dead by a soldier in her back garden in circumstances which were 'unjustified', a coroner has ruled.

The family of a mother-of-six shot dead by a British soldier in 1971 have lost a High Court battle aimed at having a new police investigation into her killing fast-tracked.

Kathleen Thompson was fatally wounded outside her home in Creggan in November 1971.

In June 2022 an inquest held she was shot by an unnamed serviceman, referred to as Soldier D, in circumstances which were not justified.

The coroner rejected his claims that he believed he was under fire and acted to protect himself and colleagues.

She subsequently referred the case to the Director of Public Prosecutions.

Mrs Thompson’s family was informed last year that any potential prosecution of Soldier D in relation to her killing would not be possible until a police probe has concluded.

It is one of over a thousand historic cases being reviewed by the Legacy Investigation Branch.

But under the terms of the controversial Legacy Act criminal probes into conflict-related deaths are to be shut down in May.

Kathleen Thompson's family at her funeral in 1971.

A legal challenge was mounted after the DPP decided not to exercise a discretionary power which would require police to prioritise an investigation and provide additional information on any potential offence related to Mrs Thompson’s death.

The Director had concluded there were no exceptional circumstances to warrant such a referral to the Chief Constable under the Justice (NI) Act 2002.

Mrs Thompson’s son, Billy Thompson, claimed the decision was irrational and amounted to a misdirection in law.

His lawyers argued there were exceptional circumstances, and prosecutors had wrongly identified further lines of inquiry for police without making a formal referral.

The Public Prosecution Service insisted the decision was lawful and reasonable.

The PSNI is aware of the case, intends to investigate it further in due course and should be allowed to independently manage its resources, the court heard.

Mr. Justice Scoffield held that the DPP is legally entitled to wait for the outcome of the police process.

“He has a discretion to issue a request, in order to prioritise that investigation, but is not obliged to do so as a matter of general practice nor by way of an implied duty,” he said.

The judge cited the LIB’s finite resources and significant caseload.

“All of these cases involve a death and could therefore be said to be of the utmost gravity,” he pointed out.

Mr Justice Scoffield confirmed: “The question for this court is whether it has been shown to be irrational for the respondent not to have taken the step of directing an investigation when one was pending in due course.

“Although it would have been open to the DPP to have done so, I do not consider that it was irrational for him to consider that this case was not exceptional to such a degree that he ought to.”

The judge acknowledged Mr Thompson’s concerns that any criminal investigations will be halted in May if the Legacy Act survives separate legal challenges by Troubles victims.

He added: “It is a regrettable feature of the current situation that such families may find or consider themselves to be in some form of competitive scramble for priority.”

Outside court solicitor, Fearghal Shiels, said: “We are disappointed, given the coroner’s clear and unequivocal findings, and will carefully consider the judgment with a view to any possible grounds of appeal.”