Ex-soldier Dennis Hutchings will face trial over killing

Former British soldier Dennis Hutchings will be tried for attempted murder in connection with a fatal shooting in Northern Ireland in 1974.

He was told on Thursday that his appeal that the case was an abuse of process had failed.

John Pat Cunningham, 27, who had learning difficulties, was shot in the back as he ran away from an Army patrol near Benburb, County Tyrone, in 1974.

Mr Hutchings, 77, is from Cawsand, Cornwall.

His lawyer had previously said it was unfair to try his client.

The judge, Mr Justice Colton, said that although he was "uneasy" about a prosecution being taken more than 40 years after the incident, he felt Mr Hutchings should stand trial.

Mr Hutchings is in ill health and did not attend Thursday's hearing.

He applied to stay the proceedings against him on three grounds; alleged non-availability of evidence, a delay in the case and a claim of a breach of a promise that he would not be prosecuted for the incident.

Mr Hutchings has denied charges of attempted murder and attempting to cause grievous bodily harm.

He has made the case it was never his intention to kill or injure Mr Cunningham, but that he was firing warning shots to get him to stop.

Other soldiers who were present at the scene provided statements in the aftermath of the 1974 killing, saying that while they heard shots they did not actually see Mr Hutchings discharge his rifle.

Belfast Crown Court heard that a lack of other evidence raised by the defence includes the "absence of the original investigation file", a failure to establish a property crime scene, inconsistencies about who seized the rifles from the scene, and the absence of evidence explaining "how, when and by whom" Mr Cunningham's remains were taken to the mortuary for a post-mortem.

Regarding the delay in bringing the case to court, Mr Justice Colton said the prosecution were seeking to rely on the statements of other soldiers who are now deceased, and that "no enquiries can be made of their memory of these events".

Mr Justice Colton also referred to the alleged breach of promise and the claim that Hutchings was told in 1974 and again in 1975 he would not be prosecuted.

The court heard on Thursday that in September 2011, the circumstances surrounding Mr Cunningham's death were examined by the Historical Enquiries Team (HET).

Following correspondence between the victim's family and the Attorney General, a review into the case resulted in the Public Prosecution Service's conclusion that the test for prosecution had been met.

Refusing the application to stay the proceedings, Mr Justice Colton also said he was satisfied Mr Hutchings would get a fair trial.

Mr Hutchings has not yet been arraigned - where the charges will be put to him.

As yet, no date has been set for the trial but this will be reviewed at the end of June.

In November, the judge had adjourned the hearing until May to allow the prosecution time to consider and respond to the defence arguments.