PROSECUTING a former soldier for the murder of a teenage boy in Derry nearly 48 years ago breaches his human rights, the High Court heard yesterday.
Counsel for the ex-serviceman claimed a failure to properly consider his health in reaching the decision to charge him over the killing of Daniel Hegarty.
The 15-year-old was shot twice in the head during a British Army operation in the Creggan area of the city in July 1972.
In April last year the Public Prosecution Service (PPS) announced that the military veteran, referred to as Soldier B, is to be charged with his murder.
He is also facing prosecution for intentionally wounding Daniel's cousin Christopher Hegarty, then aged 17, in the same incident.
Lawyers representing the former soldier are now seeking to judicially review those PPS decisions.
Due to reporting restrictions Soldier B's identity or whereabouts cannot be revealed.
The prohibition also prevents precise details of the legal arguments made on his behalf being disclosed.
But barrister David Scoffield QC contended that prosecutors did not take his client's health into account.
"There's no evidence of that being given proper consideration," he told the three judges hearing the case.
Mr Scoffield centred submissions on an alleged breach of Soldier B's human rights, and insisted the point could only be raised in exceptional cases.
Daniel Hegarty was killed during Operation Motorman, when British troops were deployed in Derry at the height of the Troubles to clear so-called no-go areas.
In 2011 an inquest jury unanimously found he posed no risk and had been shot without warning.
Five years later a decision was taken not to prosecute Soldier B.
But in May 2018 the High Court quashed that determination following legal action by the Hegarty family.
The current Director of Public Prosecutions for Northern Ireland, Stephen Herron, then carried out a review of the case before announcing charges are to be brought.
His decision is now being challenged by Soldier B on a number of grounds, including irrationality and an alleged failure to take proper account of the evidence.
The hearing continues.
