The family of a mother-of-six shot dead by a British soldier more than 50 years ago have lost a legal battle aimed at fast-tracking a decision on any potential prosecution for her killing.
Kathleen Thompson was fatally wounded outside her home as troops withdrew from the Creggan area of Derry in November 1971.
In June 2022 an inquest held that she had been shot by an unnamed serviceman, referred to as Soldier D, in circumstances which were not justified.
The coroner subsequently referred the case to the Director of Public Prosecutions (DPP).
Mrs Thompson’s family was informed last year that any potential prosecution of Soldier D in relation to her death would not be possible until a police probe has concluded.
Her son, William Thompson, challenged the DPP’s decision not to exercise a discretionary power which would require the PSNI to prioritise its investigation into the killing.
But judges in the Court of Appeal ruled on Monday that the prosecuting authority acted lawfully.
The death of Mrs Thompson is among more than a thousand historic cases being reviewed as part of a sequencing model within the PSNI’s Legacy Investigation Branch (LIB).
Under the terms of the UK Government’s controversial new Troubles Legacy Act criminal probes into conflict-related deaths in Northern Ireland are set to be shut down next month.
Judicial review proceedings were issued after the DPP concluded there were no exceptional circumstances to warrant referring the case to the chief constable under the terms of the Justice (Northern Ireland) Act 2002.
Mr Thompson claimed the decision was irrational and amounted to a misdirection in law.
His lawyers argued that there were exceptional circumstances, and that prosecutors had wrongly identified further lines of inquiry for police without making a formal referral.
The Public Prosecution Service insisted it was a reasonable decision in circumstances where police intend to further investigate in due course and should be allowed to independently manage their resources.
An appeal was mounted after the High Court held that the DPP is legally entitled to wait for the outcome of the LIB process.
Backing those findings, Lord Justice McCloskey also identified no legal basis to suggest any referral would even speed up inquiries.
“Where the DPP exercises his power under (the Act) in relation to any of the LIB cases, this does not as a matter of law require the Chief Constable/Police Service to apply any
acceleration or prioritisation to investigation in the case concerned,” he said.
According to the judge, prosecutors did actually issue investigative instructions and sought further information from police.
“We cannot accept arguments that such an approach is irrational simply because of the coronial finding that Soldier D has used excessive force,” he said.
“Such a finding does not automatically translate into a viable criminal prosecution.
“There may for example be a need for further expert evidence, interview under caution, or
other investigations all designed to enable the DPP to make an informed assessment of whether the criminal standard can be met upon prosecution - given that the coroner applies the lower civil standard.”
Dismissing the appeal, Lord Justice McCloskey expressed sympathy with the Thompson family’s protracted legal fight.
“Their experiences bear eloquent testimony to the multiple challenges and
complexities presented by the subject of so-called ‘legacy’ deaths in this jurisdiction,” he added.
“However, applying the relevant legal rules and principles objectively, we conclude that the DPP did not act unlawfully.”