Order for fresh inquest into killing of Official IRA commander Joe McCann by army patrol was unlawful, court is told

Counsel for two former paratroopers acquitted of murdering Joe McCann claimed it was irrational to direct the new tribunal just before all Troubles-era cases were halted.

A judge was also told that another inquest will never be able to establish who fired the fatal bullet.

Mr McCann, 24, was shot in disputed circumstances by a British Army patrol near his home in the Markets area of Belfast back in April 1972.

Two members of the Parachute Regiment, Soldiers A and C, were subsequently accused of his murder.

But in 2021 they were formally acquitted after the trial collapsed because key evidence based on statements given to Royal Military Police back in 1972 and to Historical Enquiries Team (HET) investigators in 2010 were ruled inadmissible.

Following that outcome members of Mr McCann’s pressed for the establishment of another inquest.

In April last year Attorney General Brenda King announced that she had directed a fresh hearing, saying it would not be inhibited from considering the soldiers’ written statements and would be able to provide a public record of what occurred.

The move was made just two weeks before the controversial Legacy Act introduced by the previous Conservative Government brought an end to Troubles-era inquests.

Lawyers representing Soldiers A and C have brought judicial review proceedings in a bid to have the Attorney General’s decision quashed.

Their barrister, Joseph Aiken KC, argued the order made to the Coroner’s Service was both unlawful and irrational.

“There is an issue of general public importance, can a public authority direct another public authority to do something, knowing it’s impossible for that decision to be complied with,” he submitted.

The court heard Soldier A now has brain damage and continues to suffer from related health issues.

His former colleague, Soldier C, provided an affidavit that the decision to order a fresh inquest has brought back the distress and difficulties he endured during the criminal proceedings.

During submissions Mr Aiken repeatedly questioned the advisability of the Attorney General’s move.

A total of eight shots were fired by members of the Army unit during the incident when Mr McCann was killed, the court heard.

Six of them were discharged by another paratrooper who has since died, Soldier B.

Counsel stressed how the judge at the criminal trial has already stated it cannot be established who fired the fatal round.

All of the other statutory questions which an inquest must address have already been answered, it was contended.

Mr Aiken added: “There is no dispute about how Mr McCann met his death, he was shot by one or other of three soldiers, according to judgments that have been set out.”

Tony McGleenan KC, for the Attorney General, countered that the challenge should be dismissed due to the current legislative circumstances.

“As the law stands today the direction (to hold a fresh inquest) can have no legal consequences,” he said.

“It’s not possible for an inquest to be convened in this case.”

Mr McGleenan told the court there is currently no timetable for primary legislation required to change the current position.

“The central relief being sought is something the applicants’ already have,” he added.

Reserving judgment in the challenge, Mr Justice Humphreys pledged to give his decision as soon as possible.