A former soldier accused of the murder of a Co Armagh man 43 years ago cannot get a fair trial, his lawyers claimed on Friday.
Dennis Hutchings (76) is accused of the murder of 27-year-old John Patrick Cunningham, who was shot in the back as he ran away from an Army patrol near Benburb in June 1974.
Defence counsel James Lewis QC in an ‘abuse of process’ hearing at Belfast Crown Court, accused the prosecution of having “manipulated the proceedings”.
Mr Justice Colton adjourned the abuse hearing until later next month to allow the prosecution time to consider and respond to the defence arguments, after which it is believed he will reserve his judgement on the ‘stay application’.
Earlier Mr Lewis, who revealed Mr Hutchings is suffering from an incurable chronic kidney disease, argued that “these proceedings should be stayed ... in that he cannot get a fair trial, and secondly it is unfair to try him”.
The lawyer, who accepted that the granting of such applications “is an exceptional remedy”, claimed that given the length of time since the shooting and other material matters, his client had been “extremely prejudiced”, adding there “is nothing the court (trial court) can do to mitigate this prejudice”.
Mr Lewis said while his client had made no direct admission of opening fire, he had fired three shots during the incident, while two others were fired by a second soldier.
The lawyer said while the prosecution may say the shots his client fired were aimed shots, “we say they were warning shots”.
Mr Lewis said Mr Hutchings “was explicitly told” at the time that he would not face a trial or prosecution, but the Director of Public Prosecutions had decided to overturn that commitment.
“That promise not to prosecute was unequivocal and in writing,” he declared.
Mr Lewis added that neither Mr Hutchings nor his defence team have been given any “explanation for the change of opinion”.
He also told the court that no new evidence, possibly affecting the decision, had since come to light.
Claiming that the prosecution “have manipulated proceedings”, Mr Lewis argued the authorities had “waited until evidence is lost, witnesses have died and memories have faded”.
The prosecution has been given until December 14 to consider and reply to the defence arguments, and say why the pensioner soldier should stand trial for the shooting.