A former soldier accused of the attempted murder of a Co Armagh man 43 years ago cannot get a fair trial, his lawyers claimed today.
Dennis Hutchings (76) is accused of the murder of 27-year-old John Patrick Cunningham, who had learning difficulties. Mr Cunningham was shot in the back as he ran away from a British 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 had adjourned the 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 that 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", however claimed given the length of time since the shooting and other material matters, his client had been "extremely prejudiced", adding later that there "is nothing the 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 in the ten-man patrol.
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 initially Mr Hutchings "was explicitly told" at the time that he would not face a trial or prosecution, but that now the Director of Public Prosecutions had decided to overturn that commitment.
"That promise not to prosecute was unequivocal and in writing," he said.
In addition, said Mr Lewis, to date, neither Mr Hutchings or his defence team have been told why, or 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 in the proceeding 43 years.
Claiming that the prosecution "have manipulated proceedings", Mr Lewis argued the authorities had "waited until evidenced is lost, witnesses have died and memories have faded".
The prosecution have been given on until December 14 to consider and reply to the defence arguments, and why they say the pensioner soldier should stand trial for the shooting.
He was described in earlier court proceedings as an innocent, vulnerable and unarmed man, who had a fear of people in uniform, including soldiers, policemen and priests, and was shot dead in a field in Carrickaness Road, as he ran away from Hutchings' patrol who had followed him into the field.
