Former British soldier Dennis Hutchings has been ordered to stand trial next year accused of the attempted murder of a vulnerable man in Northern Ireland over 40 years ago.
At Belfast Crown Court today, senior judge Mr Justice Colton set the date for the non-jury Diplock-style trial as Monday, March 9, 2020.
The 78-year-old, from Cawsand, Cornwall, was not in court today for the brief hearing during which the judge was told that an up to date medical report on the former member of the Life Guards regiment made for “grim reading”.
Mr Justice Colton also ruled that Mr Hutchings will be formally arraigned later this month on the two charges he faces.
Both the prosecution and the defence agreed that the arraignment hearing can take place via videolink from a courtroom in England.
Mr Hutchings has been accused of the attempted murder of John Patrick Cunningham on June 15, 1974.
Mr Cunningham was shot in the back by the Army with an SLR rifle in a field on the outskirts of Benburb in Co Tyrone.
The former soldier is further accused of “unlawfully and maliciously attempting to cause grievous bodily harm to John Patrick Cunningham with intent to do him grievous bodily harm”.
Defence barrister Ian Turkington told Mr Justice Colton that a medical report had been lodged with the court on August 15 this year and a copy was also provided to the Public Prosecution Service in Northern Ireland.
He said the report, compiled by a Dr Hunt, “makes for rather grim reading”.
A previous court hearing was told that Mr Hutchings was suffering from “acute renal failure” and would spend the rest of his life on dialysis.
During today’s hearing, Mr Turkington explained that the defendant was currently “receiving dialysis three times per week”.
The defence barrister suggested that, given Mr Hutchings’ ill health, he could be formally arraigned on the two charges “either on the morning of the trial or at the teeth of the trial”.
Mr Turkington said that because of the defendant’s treatment, there would need to be consultation between Mr Hutching’s primary care health officials in England with their counteparts in Northern Ireland.
Mr Justice Colton heard that a defence expert witness was unavailable for the provisional trial date in January next year but said he would available for March 2020.
Senior crown counsel Charles MacCreanor QC said it was the prosecution’s view that the arraignment hearing should take place within four weeks.
He told the court that the prosecution was aware of Mr Hutchings health issues in the case and suggested the defendant could follow trial proceedings by video link from England.
“He would then attend court to give evidence if he wished,” said Mr MacCreanor.
The senior prosecutor added that there had been delays in the case and “it has has taken a long period of time to get matters on”.
He urged the court to “expedite the hearing as much as possible”.
Mr Justcie Colton said he recognised that Mr Hutchings “will require some accommodation” given his health problems and said the defendant will be formally arraigned on September 27 via video link.
“If that date doesn’t suit we can make a date that does.
“I will list the trial date for Monday, March 9, 2020,” he added.
Mr Hutchings had sought trial before a jury rather than a Diplock-style court hearing where the judge decides the case in order to avoid the danger of jury intimidation in terrorist-related cases.
In June this year, the Supreme Court in London gave an unanimous ruling that the trial should be held without a jury.
Lord Kerr, delivering the judgment, said trial by jury should not be assumed to be the unique means of achieving fairness in the criminal justice process.
He said: “Trial by jury can in certain circumstances be antithetical to a fair trial and the only assured means where those circumstances obtain of ensuring that the trial is fair is that it be conducted by a judge sitting without a jury.”
The Northern Ireland director of public prosecution’s decision not to hold a jury trial for Hutchings was correct, Kerr said.
In line with the practice in most Troubles-related cases, the trial had been due to take place in a non-jury, Diplock court-style hearing.
Lord Kerr, who was a former Lord Chief Justice in Northern Ireland, said it was “entirely unsurprising” that prosecutors decided there could be a risk of a biased juror or jury.
The judge said there was “no fundamental right” to have a trial by jury, adding: “The fundamental right is to a fair trial”.
Kerr noted that Hutchings’ patrol had been involved in a “firefight” with members of the Provisional IRA (PIRA) two days before the fatal shooting.
“That the soldiers who fired on Mr Cunningham suspected that he was a member of the PIRA seems inescapable,” the judge added.
“A number of shouted commands to Mr Cunningham to stop went unheeded,” Kerr said.
Cunningham, 27, whose mental age was said to have been between six and 10 years, was shot in the back as he ran across fields towards his home.
His family said he feared men in uniform.
An inquiry into the killing by the PSNI’s Historical Enquiries Team (HET) confirmed that Cunningham was “easily confused and may have had an inherent fear of men in uniform and armoured vehicles”.
The HET inquiry concluded that Cunningham was unarmed, shot while running away and presented no threat to the soldiers or anyone else.
After a review of the case by Northern Ireland’s Attorney General John Larkin QC, more than 40 years on, prosecutors recommended that Mr Hutchings should face charges over the shooting.