A lawyer for the two former paratroopers acquitted of the murder of Official IRA leader Joe McCann during the Northern Ireland Troubles has called for an inquiry the ‘morally indefensible’ prosecution of the 1972 killing.
Today the Army veterans, who cannot be named, were formally acquitted after prosecutors offered no further evidence at Belfast Crown Court.
It came after previous statements the two men had given years ago were ruled inadmissible last week, collapsing the case.
The court heard that the prosecution accepted that if they were excluded the charges against the defendants must fail, but had until 2pm today to consider an appeal.
But in the end they told Mr Justice O’Hara this afternoon they offered nothing further, ending the controversial case against them.
The judge had earlier described as ‘remarkable’ the fact the ex-soldiers had been prosecuted for 24-year-old McCann’s murder on the basis of a report by a police legacy unit, the Historical Enquiries Team (HET), and not as a result of a follow-up criminal investigation by the Police Service of Northern Ireland (PSNI).
This was despite the HET telling the court this week – which was sitting without a jury over tamper fears – it did not think there was any evidence to reopen the case.
Philip Barden, a senior partner at Devonshires who represents the soldiers, has called for an urgent independent review of the approach taken by the PPS in the case, including their decision to prosecute.
He said: ‘It is extraordinary that one of the first cases following the work of the HET to come to trial was that of a man who lived by the gun and who shot and killed at will.
‘McCann and men like him caused the very violence which led to so many innocent people dying, yet their families are in the queue for justice behind him. This is not justice or fairness.
‘Morally this is indefensible and a strong indication that there is a desire to use the criminal justice system to settle old scores. How was it that Joe McCann’s death became a priority before the Public Prosecution Service?
‘The stress of these proceedings on the soldiers and their families cannot be underestimated.
‘This is a prosecution that should never have got off the ground.’
Joe McCann, pictured above, 24, was shot dead by soldiers in the Markets area of Belfast in 1972 while dressed in disguise as he attempted to evade arrest at the hands of Royal Ulster Constabulary officers
Veterans and supporters celebrate as the trial of two veterans saw them acquitted today
Anne McCann, middle, widow of Joe McCann, and other family members react outside court
News of the acquittal was hailed by MP Johnny Mercer and first Veterans Commissioner for Northern Ireland Danny Kinahan.
Mr Mercer said: ‘”Not guilty” Should never have happened. Hopefully this marks the lowest point in this Nation’s treatment of her Veterans. Government must act.’
Mr Kinahan said: ‘I welcome that soldiers A&C were found not guilty. It should never have got to this stage.
‘I pay tribute to the two veterans and their families for the dignity and fortitude they have shown. I hope they will be allowed to get on with their lives in peace.’
But the family of Joe McCann said they would apply to the Attorney General to open an inquest into his killing.
Speaking outside the court, solicitor for the family Niall Murphy said: ‘This ruling does not acquit the State of murder.
‘This ruling does not mean that Joe McCann was not murdered by the British Army.
‘He was shot in the back whilst unarmed, from a distance of 40 metres, posing no threat. It was easier to arrest him than to murder him.’
He added: ‘Today is not the end of the McCanns’ journey for justice.
‘They will now apply to the current Attorney General to open the inquest at which Soldiers A and C will be compelled to appear and give evidence and be cross examined.’
Mr McCann’s daughter Aine said: ‘The judge was right when he used the word appalling to describe the failure of the State at all levels in relation to the murder of Joe McCann.
Photograph said to show Joe McCann with an American M1 carbine during a gun battle for Inglis Bakery in Eliza Street in The Markets area of Belfast in 1972
Veterans and supporters pictured outside court as the trial began of two former British paratroopers charged with the murder of Mr McCann at Belfast Laganside Courts on April 26
‘The RUC failed, the criminal justice failed, not only in this case but in the case of many other families.’
Proceedings against the paras – who are both in their 70s and of whom who cannot remember the shooting after suffering a stroke – had been described as a political witch hunt by critics.
It only went to court after Northern Ireland Attorney General, John Larkin, referred it to the Director of Public Prosecutions Stephen Herron. This was despite the soldiers being told after the shooting they would not be prosecuted.
Even as recently as 2010 when they agreed to help the HET on the understanding it was to help give the McCann family gain some closure they were told again no prosecution would come from it.
Mr Justice O’ Hara said during a discrete hearing on the admissibility issue: ‘One of the remarkable features of the case is after the HET interviews they weren’t interviewed by the PSNI, they weren’t arrested, but they are in court on trial for murder.’
Today he ruled: ‘What was required in this case, and what never took place was that the PSNI should have interviewed the defendant under specific caution to suspect a crime of murder.
‘If that had been done, and if admissions had been made, then prosecutions would have been possible.’
He said it was not legitimate to put the 1972 evidence before the court ‘dressed up and freshened up with a new 2010 cover’.
IRA terrorist suspects are rounded up by British soldiers on Bloody Sunday in Londonderry
The Provisional Irish Republican Army (IRA) detonated two 6-pound gelignite bombs at two pubs in Guildford, England. Police escort members of one of the families from the Old Bailey.
The relatives of Mr McCann and his widow Anne (front centre) arrive with solicitor Niall Murphy at Belfast Crown Court in Northern Ireland on April 26
Joe McCann’s long IRA career in full over just seven years of attacks
1965 – Joins the IRA at the age of 17
Dec 3, 1965 – Convicted of possessing Army bayonets and being an IRA member and was sentenced to a year in prison.
July 29, 1969 – Fined for assaulting a police officer.
March 9, 1971 – Reports he was involved in the murder of Provisional IRA member Charlie Hughes.
May 22, 1971 – Believed to have been part of the murders or two soldiers.
June 28, 1971 – Convicted of breach of the peace at an IRA funeral and is sentenced to six months, but absconds on bail.
August 10, 1971 – Involved in a bakery siege and subsequent firefight.
September 21, 1971 – He is implicated in the attempted murder of four police officers.
February 22, 1972 – Took part in the bombing of Parachute Regiment headquarters in Hampshire that killed seven civilians.
February 25, 1972 – Implicated in the attempted assassination of home affairs minister Lord Kilcooney.
April 15, 1972 – He is shot dead in the Markets area of Belfast. The Official IRA say he was responsible for killing 15 British soldiers.
He said the prosecution had come ‘nowhere near’ proving beyond a reasonable doubt that the statements were not so obtained.
Mr McCann was shot dead as he ran away from police and Army on Joy Street in Belfast in April 1972.
The prosecution was taken following the Northern Ireland’s Attorney General referral of the case to the Director of Public Prosecutions in 2014 after receiving the findings of the HET re-examination of the case.
During yesterday’s hearing in Belfast Crown Court, it emerged that the prosecution had conceded that witness statements made by the accused veterans to the Royal Military Police in the immediate aftermath of the fatal shooting would be inadmissible as evidence if considered in isolation.
That is due to a series of deficiencies in how the 1972 statements were taken, including the fact the soldiers were ordered to make them, they were not conducted under caution, there was no access to legal representation and the Army policy of not asking soldiers to provide an explanation or rationale for their actions.
The focus of the legal wrangle over admissibility centres on statements and interviews the soldiers gave to the HET 38 years later.
In their engagements with the HET in 2010 both soldiers accepted that they made the 1972 statements.
Lawyers for the soldiers expressed concern that the prosecution was trying to ‘launder’ the inadmissible 1972 statements and get the evidence contained in them before the trial using the ‘backdoor’ of the 2010 statements and interviews.
They also highlighted flaws in the HET process.
They said the soldiers’ lawyers were not told that the 1972 statements were inadmissible and the veterans were under the impression they were participating in a fact-finding exercise to benefit the McCann family, rather than a criminal probe.
A plaque on the spot where Mr McCann was shot dead on Joy Street in Belfast. The image of it is based on a photograph of Mr McCann said to be taken in August 1971
MP Johnny Mercer seen arriving at Laganside Courts in Belfast, Northern Ireland, on April 26
How did it get to court?
1972 – After the shooting the three soldiers – one of whom who has now died – were told by the Director of Public Prosecutions and the Attorney General they would not be prosecuted.
1973 – The Director of Public Prosecutions reviews the case and says there is no sufficient likelihood of conviction.
2010 – The surviving two soldiers give as best a statement they can to the Historical Enquiries Team after being reassured it would not lead to a prosecution in the absence of any further evidence.
2013 – The HET report finds soldiers were not justified in shooting dead McCann.
2014 – Northern Ireland Attorney General, John Larkin, refers case to the Director of Public Prosecutions
2016 – DPP announces that the two surviving soldiers will be charged over the murder of McCann.
2021 – After a protracted series of legal hearings the trial begins in Belfast, with it expected to run for four weeks, but collapses after just two days.
Mr Justice O’Hara questioned why when the veterans were cautioned prior to their HET interviews they were not informed what offence they were suspected of committing, namely murder.
Prosecution barrister Louis Mably conceded the soldiers should have been told.
‘There were plainly deficiencies in the approach adopted by the HET,’ he said.
Mr Mably insisted there was no set legal rule that evidence obtained as a consequence of the 1972 inadmissible statements was itself inadmissible as a consequence.
He said it depended on the circumstances of the case.
He said Soldier A ‘voluntarily’ relied on the 1972 statement in his 2010 engagement with the HET and he said Soldier C went further, offering new ‘incriminating’ evidence of his involvement in the shooting during interview.
The Crown lawyer acknowledged that the various statements from the soldiers were the only evidence available to court capable of proving that they fired shots at Mr McCann on the day.
In response, the judge asked: ‘So without the interviews the case must inevitably fail?’ Mr Mably replied: ‘On that basis my lord, yes.’
Speaking outside Laganside Court in Belfast afterwards, solicitor for the McCann family Niall Murphy said they had ‘very strongly held views’ about the ruling.
He added: ‘They are mindful that the matter is live before the court and looking forward to the exhaustion of an appeal.
‘To that end, we will reserve comment until next Tuesday.
‘They very much look forward to an appeal being launched.
‘That’s under consideration at present.
‘We will know the position more clearly on Tuesday morning.
‘There are very strongly held opinions in respect of what has transpired in this case.
‘We will make those public at the appropriate time.’
What is the timeline of the Northern Ireland troubles and peace process?
British Government first send troops into Northern Ireland after three days of rioting in Catholic Londonderry
30 January 1972:
On ‘Bloody Sunday’ 13 civilians are shot dead by the British Army during a civil rights march in Londonderry
The Stormont Government is dissolved and direct rule imposed by London
The IRA begin its bloody campaign of bombings and assassinations in Britain
Bobby Sands, a republicans on hunger strike in the Maze prison, is elected to Parliament. He dies a month later
An IRA bomb explodes at the Grand Hotel in Brighton, where Margaret Thatcher is staying during the Tory Party conference
Margaret Thatcher and then Sir John Major set up a secret back channel with the IRA to start peace talks. The communications was so secret most ministers did not know about it.
Tony Blair helps to broker the Good Friday Agreement, which is hailed as the end of the Troubles.
It establishes the Northern Ireland Assembly with David Trimble as its first minister.
With some exceptions the peace process holds and republican and loyalist paramilitaries decommission their weapons
The Queen and Prince Philip make a state visit to Ireland, the first since the 1911 tour by George V.
In a hugely symbolic moment, the Queen is pictured shaking hands with Martin McGuinness – a former IRA leader.