Operation Motorman: Full transcript of the decision not to prosecute soldier than killed Daniel Hegarty

Representatives of both nationalist parties have called on the Public Prosecution Service to re-think their decision not to prosecute the soldier responsible for the killing of Daniel Hegarty, a 15-year-old boy shot dead during Operation Motorman in Creggan in the early hours of July 31, 1972.

Friday, 11th March 2016, 8:32 am
Updated Friday, 11th March 2016, 9:36 am
Daniel Hegarty

SDLP leader Colum Eastwood has called for an “urgent review” of the decision.

Mr Eastwood said: “This is yet another blow to the family of Daniel Hegarty. 43 years after the death of their loved one, they are still faced with hurdles and obstacles in the pursuit of justice.

“It is already established that Daniel was unarmed and posed no threat when he was killed – he was innocent. The Ministry of Defence has acknowledged these facts and has even gone to the lengths of apologising for labelling Daniel as a terrorist.

British soldiers swarm into Creggan during Operation Motorman, July 1972. Courtesy Colmen Doyle.

“The Hegarty family deserve justice and this can only prevail when the soldier is brought before the courts and tried for his actions. This case needs urgently reviewed and the PPS need to treat this with the utmost priority.

“Again and again our politics has failed to deal with the legacy of the past. The Hegarty family are among thousands who have been denied truth and justice because of this failure. These families and this society will never be at peace to move on unless we fully and comprehensively deal with the past. It’s long since time that we finally started that process.”

Meanwhile, Sinn Féin MLA Raymond McCartney said:“The decision by the Public Prosecution Service not to go ahead with a prosecution in the case of a British soldier who shot dead 15-year-old Daniel Hegarty in Derry in 1972 is hugely disappointing.

“I would call on the PPS to review this decision.

British soldiers swarm into Creggan during Operation Motorman, July 1972. Courtesy Colmen Doyle.

“The PPS also need to meet with the Hegarty family to hear their concerns about this decision. I will be contacting the PPS urgently to discuss their decision in this case. The family of Daniel Hegarty, like the families of all victims of the conflict, are entitled to truth and justice.”

What follows is the full transcript of the decision taken in the Daniel Hegarty case by the Public Prosecution Service (PPS) and handed to lawyers for the Hegarty family following a meeting with the PPS on Tuesday, March 8, 2016. It is signed by Barra McGrory QC, Director of Public Prosecutions for Northern Ireland.

“Further to our meeting of this afternoon I thought it might assist you and your clients if I provided a detailed written explanation for the outcome of the review recently completed in this case.

“At approximately 4.15am on 31st July 1972 Daniel Hegarty (15 yrs) was shot and killed by the member of an army patrol on duty in the Creggan area of Londonderry. there is no dispute that the shot that killed him was fired by a soldier who has been identified as Soldier B.

“A police investigation was conducted at the time and a file submitted to the DPP. On 17th July 1973 a direction was issued for no prosecution. This was based on the considerations set out in the police report that Soldier B had made the case at the time that Daniel Hegarty and those with him were armed and posed an immediate threat to Soldier B and the other members of his patrol and that in these circumstances there was no reasonable prospect that the defence of self-defence could be disproved.

“At the time of the original police investigation witness statements were recorded from Christopher and Thomas Hegarty, cousins of the deceased, who were with him at the time of the shooting. Christopher was also injured by gunfire at the time. Statements were also taken from other members of the public at the time although none of these witnessed the shooting. Statements were also recorded from Soldiers A and B by Military Special Investigation Branch and provided to investigating police. It is notable that these were not made after caution and were made without access to legal advice. Standing orders required soldiers to make such reports as part of their military duty. This appears to have been the normal practice in 1972 in the initial aftermath of a military shooting incident.

“The fact that these statements were made under military discipline has implications for their admissibility in the context of criminal proceedings, as further explained below.

“A subsequent investigation into the shooting was conducted by the Historical Enquiries Team in 2006. At this time arrangements were made to conduct an interview after caution with Soldier B. At the interview with Soldier B, having had the advantage of legal advice, produced a detailed written statement in which he denied any recollection of his original statement and indicated that he could not comment upon its accuracy. The statement indicated that his memory of the incident was very vague in places but he set out what may have been the circumstances in which he opened fire. He stated that he may have thought that one of the men approaching him had a nail bomb or a gun, but he cannot now recall. He claimed that he (and other soldiers) had shouted but he could not now recall what he had shouted or how many times. He did not dispute the possibility that shots were fired at close range. He stated that he would not have talked in terms of metres as is recorded in his original statement. He said there was not time to take a properly aimed shot. The weapon was still down by his side when he fired. He emphasised that events had happened very quickly and that it was his honest perception that he was about to be attacked. Having provided his prepared statement he refused to answer any further questions by investigators in the course of the interview.

“Officers of the HET were unable to identify Soldier A and hence no further evidence was available from him. It remains the case that Soldier A cannot be identified.

“Following this investigation a review was undertaken of the decision for no prosecution made in 1973. This concluded that the original decision should stand. the reasons for the decision were set out in full in a letter to Daniel Hegarty’s family dated March 28th 2008 which stated as follows.

“In all the circumstances of this incident which occurred during a full-scale military operation when attacks on the army by the IRA were anticipated, it has been concluded that the available evidence is insufficient to meet the Evidential Test for prosecution of Soldier B in respect of an offence of murder or any other related offence.

“Soldier B has asserted that he honestly believed he was under attack. It is considered that there is no reasonable prospect of the prosecution being able to prove beyond reasonable doubt that he did not so believe which is the criminal standard required to secure a conviction. In reaching this conclusion the prosecution noted that there was no evidence apart from what was asserted by the soldiers that your brother or either of his cousins were armed.

“The Attorney General for Northern Ireland directed that a fresh inquest into the death of Daniel Hegarty should be held. For the purposes of the inquest the Coroner commissioned a ballistics expert, Leo Rossi, to carry out investigations and produce a report. Further evidence in the form of a witness statement was also obtained from Major Dickson who in 1972 had been the commanding officer of Soldiers A and B. Both Leo Rossi and Major Dickson gave evidence to the inquest. Soldier A had not been identified and Soldier B was not fit to attend. The inquest concluded on 9th December 2011 when the jury delivered a number of findings which included the following.

“We believe Daniel James Anthony Hegarty died on July 31st 1972 on the footpath approximately 8-10 feet from the left gate post at Creggan Heights Derry/Londonderry. On the findings of Leo Rossi forensic scientist we believe his evidence contradicts Soldiers B and A’s statements regarding the positioning of the gun and the proximity of Daniel and Christopher to the discharged weapon. Our further findings are, Daniel, Christopher and Thomas provided no threat to anyone. We believe no soldier shouted sufficient warnings. After shooting no attempt was made to approach the injured youths or provide medical assistance. Given the circumstances surrounding the operation, the climate in Northern Ireland and the perception that there would be tension and resistance encountered during the operation this would have resulted in heightened tension within the platoon.

“As a result of these findings the Coroner referred the case to the Director for consideration pursuant to section 35(3) of the Justice (Northern Ireland) Act 2002.

“Clearly Mr Rossi’s evidence played an important part in the jury’s findings. Essentially this evidence was that the head wounds to Daniel Hegarty showed a trajectory which was almost parallel to the ground and if the deceased had been 8-10 feet from the muzzle of the gun the shots could not have been fired from ground level. He further stated that tests showed the gun could not be aimed and fired from a kneeling position. Soldier A in his statement made at the time stated that, he had set up the machine gun on the pavement and was in a kneeling position with the machine gun when he fired the rounds. Soldier B in his original statement made on 31 July 1972 said he fired aimed shots and made no reference to the position of the weapon. In his evidence to the inquest Mr Rossi ruled out the possibility that the shots had been fired from “from tripod ground position”. The clear implication from this was that the accounts given by Soldier A and soldier B were unreliable.

“The finding of the jury was that Mr Rossi’s evidence contradicted statements of Soldiers A and B regarding the positioning of the gun and the proximity of Daniel and Christopher to the discharged weapon. In order to explore fully with Mr Rossi the weight that might be attached to hide evidence in a criminal prosecution and the conclusions that would be drawn from his observations, Mr Frank O’Donaghue QC and Mr Rea (former Assistant Director, PPS) consulted with Mr Rossi. They discovered that he had been supplied with the original statement of Soldier B made in 1972 but not his later statement made to the HET in 2006.

“In this statement made to the Historical Enquiries Team on 06 October Soldier B described the handling of the machine gun was as follows:-’31 I passed round the back and the side of the house, passing the other soldiers who were lined up there and dropped to my knee at the edge of the house.’

‘32 Dropping to my knee would be the natural thing to do. The machine gun was extremely heavy (at least 27lbs) and would always be fired using the bi-pod that was attached to the front or other support, either with the soldier operating it lying behind it on the ground, or with the bi-pod resting on a wall or something enabling him to fire it from a raised position.

‘33-The machine gun was on my right hand side and resting on the ground.

‘34-Immediately I either heard or saw three men coming towards me from my right. I believe I may have heard them first and I believe the shouting was abusive or threatening in some way.

‘35-This all happened immediately I turned a corner and dropped to my knee. It was immediately my perception that these men were running towards my position and that they had aggressive intentions, ie, that they were intending to cause harm to me or the soldiers that I was with.’

‘36-My memory is that this was immediate. There was no time to think. Certainly I had not set up my machine gun. It was simply resting to my right on the ground.

‘45-I believe that I probably cocked the weapon as the warnings were being shouted. As they continued to run towards me, and had not responded to the shouts from others, and myself, I pulled the trigger on the machine gun that was still down by my side. I simply aimed as best I could and fired from that position. The butt of the machine gun may not even have come off the ground. There was not time for me to take a properly aimed shot as this would have required me to set up a bi-pod and lie down behind a weapon. It would not have been an option to raise a weapon of this weight to my shoulder and in any event, even if I were strong enough, I do not think there would have been time.”

“Mr Rossi was provided with a copy of this statement along with a transcript of his evidence to the inquest and asked to provide a further statement addressing the following question:-Are your findings necessarily inconsistent with the account given by Soldier B in the statement made in October 2006 or are there any circumstances in which your findings and his account could be consistent with each other?

“As a result of further discussions it was agreed that it was necessary for Mr Rossi to carry out further firing tests to ascertain whether it was possible for a soldier to fire the machine gun from a kneeling position without the bi-pod being deployed. Further testing was arranged at FSNI on 15 March 2013 using a machine gun similar to the weapon used in the shooting. Following the test firing Mr Rossi provided a further opinion which was peer-reviewed by Mr Jonathan Greer at FSNI. Mr Rossi’s final conclusion was that aimed shots could have been fired from a raised on kneeling position.

“Given the significance of the forensic evidence and its potential for challenging the account given by Soldiers A and B it was decided to seek a further opinion from an alternative expert. For this purpose Mr Rea was granted access to information held by the National Crime Agency on experts in the field and he approached Mr Mark Mastaglio of Forensic Firearms Consultancy and asked him to provide an opinion. Mr Mastaglio visited Northern Ireland on the 07-08 October 2014 when he attended the scene of the shooting and inspected records held at FSNI and the Coroner’s office. Mr Mastaglio concluded as follows:-

‘There were no close range discharge effects around the two bullet entry wounds sustained by Daniel Hegarty. Assuming the bullets had not passed through an intermediate object(s) then the muzzle of the gun was at least 2 feet from the decedent’s head when the weapon was discharged.

‘With the GPMG’s bi-pod and pistol grip resting on the ground the GPMG can be discharged by someone kneeling adjacent to the weapon. Aimed fire is not possible in this mode of operation.

‘In order to cause the bullet wounds to the decedent’s head with the gun deployed as described above, depending on the bi-pod elevation, the weapon’s muzzle would have to have been between approximately 30 feet and 50 feet (9.1 metres-15.2 metres away).

‘If Daniel Hegarty was running, with his body in an upright position, towards Soldier B’s position, he could not have been shot from a distance of 10 feet (3.05 metres) with the GPMG’s bi-pod and pistol grip resting on the ground.

‘The alleged presence of the four cartridge cases inside the garden on 114 Creggan Heights would strongly support the contention that the weapon was discharged from this position.

‘It would be an easy task for a fit young soldier to lift and discharge a GPMG whilst kneeling. The weapon could be discharged from the shoulder or any position from there to the hip. Aimed fire would be possible from the shoulder.

‘If Soldier B was approximately 10 feet from the decedent when he opened fire, the weapon could have been discharged with its muzzle at the same as the decedent un-titled head, or if the muzzle was pointing upwards, with the weapon being discharged from an aiming position, with the decedent’s head tilted downwards a few degrees at the same angle as the muzzle’s elevation, the observed bullet tracks would have resulted.

‘The two shots that hit the descendent were fired from left to right with respect to the decedent. Soldier B could have been positioned to the decedent’s left side and/or the decendent’s head could have been slightly rotated to his right.

‘From the wound ballistics alone it is not possible to determine the range at which the decedent was shot. However, if his outer garments had been preserved in a clean environment it may still be possible to use scanning microscopy with energy disperse of x-ray spectroposy (Sem-edx) to determine the presence and type of any gunshot residue (GSR). This could give an insight to the range of fire if it was less than approximately 3 metres. Sem-edx was not available in 1972.’

“The above paragraphs are particularly significant as they explain the circumstances in which the weapon could have been discharged causing the fatal wounds to Daniel Hegarty. It has not been possible to pursue the tests mentioned in the final paragraph as the clothing is not available and is believed to have been destroyed. The result is that the ballistics evidence is therefore not as compelling as it appeared to be at the inquest. The evidence against Soldier B can now be summarised as follows:-

Christopher and Thomas Hegarty both made statements to the police in 1972 and to HET in 2005 and gave evidence to the inquest. Their evidence contradicts the account given by Soldier B in that they deny acting aggressively in any way. Christopher states they were walking and Thomas states they were half walking and half running. They also deny that any warning was given.

“There is no evidence from military witnesses to dispute the account given by Christopher and Thomas Hegarty of what happened immediately after the shooting. Thomas describes being grabbed and dragged by a soldier before being released and told to ‘f--k off.’ Both Thomas and Christopher are quite categorical that no steps were taken to search any of the three of them or the surrounding area for any weapon or to arrest them. Soldier B makes no reference to his state of mind immediately after firing and whether he felt under continuing threat. It might be inferred from the evidence that no searches were made after the shooting that no further threat was perceived at that stage either by Soldier B or any of the other soldiers. On the other hand, two of three youths who had been approaching the soldiers fell as a result of being shot and the third youth had run off. In these circumstances it is arguable that the soldiers would no longer have perceived the that any of the three youths continued to pose any threat. Furthermore, Soldier B made the case that he was immediately ordered to move from the area and this account is supported by Soldier A and Major Dickson.

“Retired Major Dickson made a statement for, and gave evidence at, the inquest. In his statement he recalled hearing frantic shouting from the soldiers and shortly after that he heard the machine gun being fired. In his evidence to the inquest he conceded that he was not sure whether the shouting was came before or after the shooting. To this extent his evidence is not inconsistent with that of Christopher and Thomas Hegarty but cannot contradict the account given by Soldier B.

“There are a number of inconsistencies between Soldier B’s 2006 statement and the contemporaneous account provided in 1972. In his original statement Soldier B estimated that the youths were about 25 metres away when he opened fire. This is not consistent with the location of the blood stains at the scene and in his 2006 statement Soldier B says he believes the distance was less than this and does not dispute that the distance could have been less than 10 feet. He also states that it is unlikely that he would have referred to the distance in terms of metres as he was a “feet and inches” man. However, as noted above, the statement made to military investigators in 1972 was taken according to army protocol in force at that time. He was required to make the statement as part of his military duties. In these circumstances a Court may conclude that it would be unfair for the prosecution to adduce the content of his 1972 statement as evidence against him.

“Leo Rossi gave evidence to the inquest in accordance of his statement of 10th September 2010 as set out above. This provided the basis for the jury’s finding that his evidence contradicted the statements made by Soldiers A and B. On the crucial issue of the trajectory of the fatal shots Mr Rossi, having conducted further tests, now confirms that the gun could have been fired from a raised or kneeling position depending upon the position of the deceased. His acknowledgement that the gun could have been fired from a kneeling position is a significant shift from his position at the inquest and his revised evidence no longer contradicts the account of Soldiers A and B if one accepts the possibility that the deceased may have been approaching Soldier B otherwise than in an upright position. Mr Rossi’s findings are confirmed by Mr Mastaglio.

“It is clear that in this tragic case there was no objective justification for the shots fired by Soldier B that killed Daniel Hegarty and injured Christopher Hegarty. Neither Daniel or Christopher posed any threat to Soldier B or his colleagues. However, in a case where a defendant is no under attack, but honestly believed that he was, the Court will consider whether the degree of force used was commensurate with the degree of risk which the defendant believed to be created by the attack under which he believed himself to be.

“I have taken account of the conflict between the evidence of the surviving witnesses and Soldier B in relation to warnings and the finding of the inquest jury that sufficient warnings were not provided. However, there is a lesser degree of conflict between the evidence of the witnesses and the soldier’s 2006 account (which would be the account that would be admissible in criminal proceedings). Any reasonable doubt in relation to the warnings provided would, in the context of a criminal trial, have to be resolved in favour of the defendant. The issue of the warnings is an important issue in the context of this case but it is not, in itself, determinative of the issue of whether the soldier may have acted in self-defence. The Court will have to regard to all of the relevant facts and circumstances of the military deployment on the night of the shooting. In these circumstances I do not believe that there is a reasonable prospect of the Court concluding beyond reasonable doubt that Soldier B did not genuinely perceive that an attack by members of the IRA upon his patrol was imminent. In these circumstances a Court is unlikely to be able to conclude beyond a reasonable doubt that the actions of Soldier B did not constitute necessary self-defence and thus the test for prosecution is not met.

“I recognise that this decision will be disappointing to you and your client, particularly in the light of the findings returned by the jury at the Inquest. However, as you will appreciate, the standard of proof required to obtain a conviction is considerably higher than the standard of proof that applies to Inquest proceedings and some of the evidence which can be adduced before an Inquest may not be admissible against a defendant on trial for criminal offences. It is clear that the accounts provided by Soldiers A and B in 1972 played an important role in the Inquest but it is unlikely that they could be adduced by the prosecution in any criminal trial having regard to the circumstances in which they were taken. The subsequent developments in relation to the ballistics evidence would also undermine any attempt by the prosecution to use it to challenge the credibility of soldiers’ accounts.

“I hope that the information set out above is helpful and provides you with reassurance that this decision was reached only after a most careful examination of all available evidence and information. I understand, however, that the inability to bring a prosecution will be a source of disappointment for your clients and repeat my sincere sympathies for their loss.”