The trial of an Army veteran over a Troubles shooting will hear overwhelming evidence that he intended to kill an innocent and vulnerable man who posed no threat, a court has heard.
Dennis Hutchings, 80, a former member of the Life Guards, has pleaded not guilty to the attempted murder of John Pat Cunningham in Co Tyrone in 1974. He also denies a count of attempted grievous bodily harm with intent.
Mr Cunningham, a 27-year-old with learning difficulties, was shot dead as he ran away from an Army patrol near Benburb.
Hutchings, from Cawsand in Cornwall, wearing a suit with service medals pinned to the left breast, sat in the dock of Belfast Crown Court and listened to proceedings through a headset as the prosecution opened the case against him on Monday.
A niece and nephew of Mr Cunningham watched from the public gallery.
Crown lawyer Charles McCreanor QC said the victim was a vulnerable adult who had a known fear of soldiers and was liable to run from patrols.
“John Pat Cunningham did not pose any threat that required that he be shot and killed,” he said.
Mr McCreanor claimed that Hutchings had disregarded the Army’s operating instructions for using lethal force in Northern Ireland when he opened fire with his high velocity rifle as Mr Cunningham ran away from him across a field.
He told judge Mr Justice O’Hara that five shots were fired at Mr Cunningham – three from Hutchings’ rifle and two from the rifle of a now dead soldier, referred to as Soldier B.
The barrister said Mr Cunningham was struck by two or three bullets – the fatal shot entering through his back – but that, as none of the five discharged rounds had been recovered, there was no evidence to prove which soldier had fired the shots that hit him.
He said a lack of ballistics evidence was the reason for Hutchings facing an attempted murder charge.
Mr McCreanor said Mr Cunningham’s doctor had described him as having been born with “incomplete development of the mind”, while a local priest said he had the “mind of a child”.
The barrister said Mr Cunningham would be described in today’s terminology as a “vulnerable adult”.
“Those who knew him were aware of his learning difficulties,” he said.
Mr McCreanor said Mr Cunningham had a fear of Army patrols and persons in uniform, and became “nervous and anxious” when he came across patrols and was liable to run and hide from them.
The court heard that the fatal incident on June 15 1974 happened when Army vehicles on patrol came across Mr Cunningham on a road in Benburb as they rounded a corner.
The Crown lawyer said Hutchings was in charge of the patrol and was sitting in the passenger seat of the lead Land Rover.
Mr McCreanor said the defendant called on Mr Cunningham to halt, and that Mr Cunningham appeared “startled and confused”.
The barrister said he then ran across the road and climbed over a gate into a field.
He referred to a witness account from the now dead driver of the lead Army vehicle, referred to as Soldier C, who claimed that, as Mr Cunningham ran across the road, he put his right hand into his jacket and kept it there for a while before removing it.
Soldier C said Hutchings shouted at Mr Cunningham to “Stop there”.
The soldier said Mr Cunningham did not stop and Hutchings then ran after him and climbed over the same gate.
Soldier C said he then heard a weapon being cocked and the defendant shout “Stop and stand still”.
The soldier said he heard three or four shots being fired but that he did not know who had fired them.
The judge was then told of the account of another soldier in the patrol, Soldier E.
Soldier E, who is also now dead, was seated in the rear of the lead Land Rover.
He said he followed Hutchings as he chased Mr Cunningham into the field. The soldier said he heard Hutchings shout to Mr Cunningham to stop.
Soldier C said he also shouted a warning at Mr Cunningham but that he continued to run away across the field.
The soldier said that during the chase he overtook Hutchings.
Mr McCreanor said Soldier C thought the man running away from them had a weapon beneath his coat.
He said he cocked his own weapon but then heard three or four shots fired from behind him.
The barrister said the soldier described Mr Cunningham falling to the ground just as he reached a fence on the other side of the field.
The soldier said that when Mr Cunningham fell he stopped giving chase and returned to his Land Rover.
Mr McCreanor said Mr Cunningham had run 90 metres across the field before he was hit and that Hutchings would have had a clear perception of the threat he posed when he opened fire.
“The defendant would have had him in his sights for a significant period of time before he shot him,” he said.
The court heard that Hutchings had been interviewed twice about the incident – in 1974 and by officers reinvestigating the case in 2015. The judge was told that the admissibility of the 2015 interview is set to be challenged during the non-jury trial.
Mr McCreanor said that in the 1974 interview Hutchings confirmed he was in charge of the patrol and that he had called on Mr Cunningham to halt. However, he said the soldier declined to answer any other questions citing “legal advice” he had received.
The barrister said Hutchings’ actions contravened several of the lethal force deployment rules for the Army, including using the least force possible and firing the minimal number of shots needed.
Mr McCreanor said Mr Cunningham was “innocent and vulnerable”.
“We submit that there was no lawful basis for him to be shot and this shooting could not be justified,” he said.
He said there is a “compelling case” that Hutchings fired three shots at Mr Cunningham from close range and that the court will hear “overwhelming evidence that he intended to kill”.
Hutchings is a high-profile campaigner against the prosecution of military veterans who served in Northern Ireland during the conflict.
He was accompanied to court on Monday by Conservative MP and former veterans minister Johnny Mercer.
The pensioner is suffering from kidney disease and the trial at Belfast Crown Court will only sit three days a week to enable him to undergo dialysis treatment between hearings.
The trial is due to hear the first witness evidence on Wednesday.
In 2019, Hutchings lost a Supreme Court bid to have the trial heard by a jury.
It had originally been scheduled to commence in March 2020 but was postponed due to the Covid-19 pandemic.
The trial is taking place amid ongoing political controversy over UK Government plans to end any future prosecutions related to the Troubles.