Arrow left dark
Newsletter icon SUBSCRIBE
Article Tags:
northern ireland

NI: NI: Decision taken by the DPP not to prosecute soldier for killing boy was “irredeemably flawed”

Clock icon Reading time: 4 minutes
Article Tags:
northern ireland

The sister of a 15-year-old boy who was killed by a soldier in 1972 has been granted an order quashing the decision of the Director of Public Prosecutions not to prosecute the soldier who shot him. Daniel Hegarty “posed no threat to anyone” when he was shot twice in the head without warning, and the question of whether to prosecute the soldier responsible was referred to the DPP for reconsideration in 2011. The Divisional Court accepted that the test for prosecution had not been misapplied by the DPP, but concluded that the four-year delay in issuing the decision not to prosecute in 2016 was “manifestly excessive, inexplicable, unjustified and unlawful”, that application of the evidential test was “too stringent”, and the decision was “irredeemably flawed”.

Image

About this case:

Background

In July 1972, 15-year-old Daniel Hegarty was with his cousins, Christopher and Thomas Hegarty, when he died after being shot twice in the head by “Soldier B”.

In 2011, a fresh inquest into Daniel’s death found that the Daniel and his cousins had been shot at without warning, and had “posed no threat to anyone”. The ballistics expert, Leo Rossi, commissioned by the Coroner provided a report which contradicted the statements taken by Soldier A and Soldier B “regarding the positioning of the gun and the proximity of Daniel and Christopher to the discharged weapon”.

Decision not to prosecute “irredeemably flawed”

In December 2011, the Coroner referred the matter to the DPP for reconsideration pursuant to Section 35(3) of the Justice (NI) Act 2002. Upon referral, the DPP had a duty to review the file and make a decision on whether to prosecute on the basis of the two-stage Prosecution Test:

  1. The “Evidential Test” is met if the evidence which can be presented in court is sufficient to provide a reasonable prospect of conviction;

    1. The “Public Interest Test” is considered if the Evidential Test is passed, and is met if prosecution is required in the public interest.

      2. In March 2016, over four years after the Coroner referred the matter, the DPP issued his decision not to prosecute.

      In February 2018, the Divisional Court quashed the DPP’s decision not to prosecute “Soldier B” for the 1973 killing of 15-year-old Daniel Hegarty, finding that:

      • The prolonged four year delay between the referral from the Coroner to the promulgation of the decision not to prosecute in March 2016 was manifestly excessive, inexplicable, unjustified and unlawful.

        • The DPP was in a position to take a prosecutorial decision promptly following the receipt of Mr Rossi’s conclusions and failed to do so: “Had the decision been taken at that time it seems inevitable in light of the scientific evidence and the legal advice that the DPP must have concluded that the test for prosecution was then satisfied”;

          • There were good grounds for considering that the DPP misapplied the test for prosecution.

            • The DPP imposed too stringent a test when considering whether the evidential test was satisfied; and

              • The reasoning leading to the impugned decision not to prosecute was irredeemably flawed. In particular the DPP’s decision was founded on an unreasonable and rationally unsustainable hypothesis which was inconsistent with the case made by Soldier B.

                • The Court granted leave to amend the challenge to consider whether the DPP had misapplied the Prosecution Test.

                Sequential Application of the Prosecution Test

                It was submitted that, in considering the Soldier’s health issues, the DPP had misapplied the Prosecution Test by giving consideration to the Public Interest Test prior to making a determination on the Evidential Test. However, the DPP averred that the validity of the defence of self-defence was the focus of the evidential test, and that “Soldier B’s health issues played no part in the final determination”.

                Notably, the DPP offered an alternative reason for obtaining medical evidence on Soldier B, stating that it may have been relevant to the application of the Evidential Test and reaching a conclusion as to whether there was a reasonable prospect of a conviction. The Court stated that this was “less than satisfactory”, but accepted that the soldier’s health was not taken into account when determining the Evidential Test – therefore there was no breach of the sequential nature of the Prosecution Test.

                • by Seosamh Gráinséir for Irish Legal News

                  • Share icon
                  Share this article:

                  Related Articles