This article is more than 1 year old

This article is more than 1 year old

A 78-year-old former soldier facing prosecution for alleged attempted murder over a Northern Ireland killing during the Troubles will face trial without a jury, the supreme court has ruled.

Dennis Hutchings, a former member of the Life Guards regiment, has been charged in relation to the 1974 fatal shooting of John Pat Cunningham, a man with learning difficulties who was running away from a patrol in County Tyrone.

Hutchings had sought trial before a jury rather than a Diplock court where the judge decides the case in order to avoid the danger of jury intimidation in terrorist-related cases.

The supreme court’s unanimous decision comes amid mounting political pressure to grant amnesties to veterans for historical crimes allegedly committed during the conflict.

Lord Kerr, delivering the judgment, said trial by jury should not be assumed to be the unique means of achieving fairness in the criminal justice process. He said: “Trial by jury can in certain circumstances be antithetical to a fair trial and the only assured means where those circumstances obtain of ensuring that the trial is fair is that it be conducted by a judge sitting without a jury.”

The Northern Ireland director of public prosecution’s decision not to hold a jury trial for Hutchings was correct, Kerr said. In line with the practice in most Troubles-related cases, the trial had been due to take place in a non-jury, Diplock court.

Kerr said it was “entirely unsurprising” that prosecutors decided there could be a risk of a biased juror or jury. The judge said there was “no fundamental right” to have a trial by jury, adding: “The fundamental right is to a fair trial.”

Kerr noted that Hutchings’ patrol had been involved in a “firefight” with members of the Provisional IRA (PIRA) two days before the fatal shooting. “That the soldiers who fired on Mr Cunningham suspected that he was a member of the PIRA seems inescapable,” the judge added.

“A number of shouted commands to Mr Cunningham to stop went unheeded,” Kerr said.

Cunningham, 27, whose mental age was said to have been between six and 10 years, was shot in the back as he ran across fields towards his home. His family said he feared men in uniform.

An inquiry into the killing by the Police Service of Northern Ireland’s historical enquiries team (HET) confirmed that Cunningham was “easily confused and may have had an inherent fear of men in uniform and armoured vehicles”.

The HET inquiry concluded that Cunningham was unarmed, shot while running away and presented no threat to the soldiers or anyone else.

After a review of the case by Northern Ireland’s attorney general, more than 40 years on, prosecutors recommended that there should be charges.

In 2016, the Northern Ireland DPP issued a certificate that Hutchings should face trial before a charge sitting without a jury.

If Hutchings and another soldier fired on Cunningham believing him to be an IRA gunman, the supreme court said, then that would satisfy the legal requirement that the offences were allegedly committed in relation to the Troubles and the political situation.

Hutchings, from Cawsand in Cornwall, is due to stand trial in Belfast charged with attempted murder and attempted grievous bodily harm with intent. He denies the charges.

In a statement after the ruling, Kevin Winters of KRW Law, which represents the family of John Patrick Cunningham, said: “This is a welcome judgment from the UK supreme court for the family of John Patrick Cunningham.

“It illustrates the importance of the judiciary upholding contested decisions by law officers such as the director of public prosecutions.” He added: “This will be a fair trial before a judge and will be about justice, not retribution.”