Bloody Sunday: High Court quashes decision to discontinue Soldier F case

Senior judges directed the Public Prosecution Service (PPS) to rethink its determination that Soldier F should not stand trial for two of the killings in Derry 50 years ago.

Lady Chief Justice Dame Siobhan Keegan confirmed: “This is a rare occasion where we consider the decision should be quashed and reconsidered.”

But the court dismissed separate challenges to the PPS deciding against prosecuting other British Army veterans in connection with six of the deaths.

Identifying issues around the admissibility of evidence from ex-servicemen compelled to give statements at the time, Dame Siobhan held that a senior prosecutor had applied the correct legal test in those cases.

“(She) has formed a permissible view that there is not a reasonable prospect of the evidence being admitted and in the absence of that evidence there is insufficient other evidence for a reasonable prospect of conviction,” the Lady Chief Justice said.

Thirteen people were killed when members of the Parachute Regiment opened fire on civil rights demonstrators in Derry on January 30, 1972. Another of those wounded died later.

In 2010, the Saville Inquiry into the events on Bloody Sunday established the innocence of those who died.

Victims’ families brought legal challenges against decisions which meant five of the former paratroopers would not face trial for some of the killings.

In July last year, the PPS announced it was discontinuing charges against Soldier F for the murders of William McKinney (26) and James Wray (22) plus at least five counts of attempted murder.

The case against him was reviewed following the collapse of separate criminal proceedings against two other military veterans for Troubles-era offences.

Based on an assessment of the admissibility of evidence from the time, it was concluded that the test for prosecution was no longer met.

The PPS was also challenged for not charging former paratroopers with the murders of Mr McKinney, Jackie Duddy (17), Michael Kelly (17), John Young (17), Michael McDaid (20) and 41-year-old father-of-six Bernard McGuigan.

At the time of the shootings, the Royal Military Police (RMP) took statements from soldiers who opened fire, with further accounts prepared for the original tribunal chaired by Lord Widgery in 1972.

The case centred on a dispute about whether those statements would be ruled inadmissible in any criminal trial.

According to the families, the prosecuting authority’s assessment of the evidence was legally and fundamentally flawed.

During a four-day hearing, it was claimed that a decision not to charge one of the paratroopers with Mr McGuigan’s murder bordered on the perverse.

But counsel for the PPS insisted it had properly considered the evidential test and likely outcome of any criminal process.

He described the process as “unimpeachable” and argued that the authority would be abdicating its responsibilities by bringing to trial cases regarded as having no realistic prospect of securing convictions.

Judges were also told that the paratroopers interviewed about the events on Bloody Sunday were compelled to give statements in violation of their right to protection from self-incrimination.

Their accounts to senior ranking RMP officers were involuntary and legally inadmissible as evidence, it was contended.

Delivering judgment, Dame Siobhan held that the decision not to prosecute various soldiers for the deaths of Mr McKinney, Mr Duddy, Mr Kelly, Mr Young, Mr McDaid and Mr McGuigan was legally sound.

Referring to the paratroopers’ accounts to Widgery, she said: “It is unfortunately infected with the same problem as the other 1972 evidence, which is the element of compulsion coupled with the absence of individual legal protections.”

However, the court reached a different conclusion over the decision to discontinue criminal proceedings against Soldier F.

Prosecution had been recommended, based on a reasonable prospect that third party statements from other soldiers would be admitted at trial, Dame Siobhan pointed out.

She stated: “Overall, we do not consider that the rationale for the change of mind which we have set out above is sustainable.

“In our view, it strays too far away from the original merits-based assessment of the PPS in circumstances where in fact little if anything of direct relevance to the Soldier F prosecution has changed.”

Confirming that the PPS should carry out a reassessment in the Soldier F case, the Chief Justice added: “There is a difficulty with the conclusion that the reasonable prospect of conviction previously found had dissipated so that the prosecution should be discontinued at this stage.”