Northern Ireland’s Public Prosecution Service has defended the decision to prosecute Army veteran Dennis Hutchings over a Troubles shooting.
Hutchings died in hospital in Belfast on Monday after contracting Covid-19, leading unionist politicians to raise concerns that the case against him had been allowed to proceed.
DUP leader Sir Jeffrey Donaldson challenged the prosecution service over what new and compelling evidence led to the trial.
Deputy director of public prosecutions Michael Agnew said: “The PPS decision to prosecute Mr Hutchings for attempted murder was taken after an impartial and independent application of the test for prosecution.
“The test for prosecution requires a consideration of whether the available evidence provides a reasonable prospect of conviction and, if it does, whether prosecution is in the public interest.
“Whilst a review of a previous no prosecution decision does not require the existence of new evidence, the police investigation in this case resulted in a file being submitted to the PPS which included certain evidence not previously available.
“In the course of the proceedings there were rulings by High Court judges that the evidence was sufficient to put Mr Hutchings on trial and also that the proceedings were not an abuse of process.”
Mr Agnew said the PPS recognised the “concerns in some quarters” in relation to the decision to bring the prosecution.
He added: “We would like to offer our deepest sympathies to the family and friends of Mr Hutchings, and acknowledge their painful loss.
“However, where a charge is as serious as attempted murder, it will generally be in the public interest to prosecute.”
“Our thoughts are also with the family of John Pat Cunningham who have waited for many decades in the hope of seeing due process take its course.”
Eighty-year-old Hutchings had been suffering from kidney disease and the court had been sitting only three days a week to enable him to undergo dialysis treatment between hearings.
He was charged with the attempted murder of John Pat Cunningham in Co Tyrone in 1974.
The former member of the Life Guards regiment, from Cawsand in Cornwall, had denied a count of attempted grievous bodily harm with intent.
Mr Cunningham, 27, was shot dead as he ran away from an Army patrol across a field near Benburb.
People who knew him said he had the mental age of a child and was known to have a deep fear of soldiers.
His family have responded to the death of Hutchings saying they wished to acknowledge that this is a difficult time for the family, adding that they should be given time to grieve.
“When the time is judged appropriate, the family will respond in more detail to the issues surrounding the prosecution of Dennis Hutchings,” they said.
Meanwhile former veterans minister Johnny Mercer tweeted that he is “devastated by the death of my dear friend”.
Mr Mercer, who accompanied Hutchings to court on several days of the trial, said he “remains fiercely proud of him”.
Hutchings died at the Mater Hospital on Monday while in Belfast for the trial.
Hours earlier, the trial had been adjourned for three weeks in light of Hutchings’ health.
Sir Jeffrey said there are “serious questions that need to be answered”.
“What was the compelling new evidence that had emerged, given that Dennis had previously faced two investigations and had been found guilty of no crime, and therefore why now?” he told PA in London.
“What was in the public interest to bring this man to trial at this time, particularly in relation to his ill-health and the fact that I doubt if there was new and compelling evidence in this case?”
Sir Jeffrey added: “I think that we have to have a fair system. Everyone is equal under the law and equally subject to the law.
“That means that we have a process that examines all the cases where families have an interest in pursuing justice and if after investigation there is new and compelling evidence that could lead to a prosecution, then I think the PPS and the courts should look at those cases.”
Downing Street said the “tragic” case illustrated the problems of pursuing historical allegations through the courts.
The Prime Minister’s official spokesman said: “Our sincere condolences go to the family, friends and loved ones of Dennis Hutchings.
“The Ministry of Defence supported Mr Hutchings throughout his trial with legal representation and pastoral care, and that will continue to be offered to his family.”
The spokesman said “it’s not for me to comment on the court proceedings”, but added: “This tragic case highlights that the criminal justice approach broadly is no longer working and that is why we are committed to introducing new legislation to bring greater certainty for all communities, including the veterans and families of victims.”
In July, the Government announced plans for a statute of limitations that would end all prosecutions for Troubles incidents up to April 1998.
Hutchings’ solicitor Philip Barden, from law firm Devonshires, said the statute of limitations should be known as Dennis’s Law.
Mr Barden said that had Hutchings given evidence at his trial, he would have said that he did not shoot Cunningham, but that he had fired “air shots”.
The death of Hutchings was raised by Ulster Unionist Party leader Doug Beattie as a matter of the day in the Northern Ireland Assembly on Tuesday.
Mr Beattie extended his condolences to the families of Hutchings as well as John Pat Cunningham.
He told MLAs that just as the family of Mr Cunningham deserves truth and justice, so does the Hutchings family.
“People need to understand or find out why his case was elevated above all other cases, why his case suddenly ended up at the top of the pile … and this goes to the heart of some of the issues that we are having to deal with in what is a difficult legacy process which is affecting our present here now,” he said.
“That is something we do have to look into, it is something that we do need to examine, to be fair to the family, to understand why this was elevated, we need to understand what was the new evidence which elevated this case and we do need to find out what was in the public interest to bring this case forward.”
Sinn Fein MLA Linda Dillon described the death of Hutchings as a “human tragedy”.
However, she cautioned those criticising the PPS for bringing the case to trial, telling MLAs they are legislators and should not interfere in the judicial process.
“This was a judicial process, it is not for us to interfere in that,” she told MLAs.