An Army veteran accused of a Troubles shooting has challenged the admissibility of evidence that identifies him as an anonymised soldier in witness statements.
Dennis Hutchings is on trial charged with the attempted murder of John Pat Cunningham in Co Tyrone in 1974.
The 80-year old former member of the Life Guards regiment also denies a count of attempted grievous bodily harm with intent.
Mr Cunningham, 27, was shot dead as he ran away from an Army patrol across a field near Benburb.
People who knew him said he had the mental age of a child and was known to have a deep fear of soldiers.
The fourth day of the non-jury trial heard submissions from prosecution and defence barristers on the admissibility of a cipher list contained in a file of papers from the 1975 inquest proceedings that reveals the identities of soldiers referred to in witness statements by letters of the alphabet.
Prior to those legal arguments, the trial heard from war veteran and former MP Dr Charles Goodson-Wickes who told the court Hutchings was the “epitome of the best class” of non-commissioned officer he had known in his time in the military.
The Crown contend that two soldiers, A and B, fired five shots in total at Mr Cunningham as he fled across a field.
The trial has already heard the actions of A and B on the day referred to in witness statements given by other members of the Army patrol.
On Monday, the Crown sought to admit as evidence a document found in the 1975 inquest file that attaches names, ranks and Army serial numbers to the letter ciphers used in the anonymised witness statements.
A police detective sergeant, who obtained the file from the Northern Ireland Public Records Office, told the court that the document identified soldier A as Hutchings.
The defence later argued against admitting the document as evidence.
Defence barrister Ian Turkington told judge Mr Justice O’Hara he did not seek to challenge the reliability of the document but he said there were several other legal grounds upon which the judge should rule it inadmissible.
He said one of those included the need to show the document was prepared by someone with first hand knowledge of the subject matter.
The barrister said the lack of evidence as to who had compiled the document, suggesting it might have been an administrative assistant, left a “gaping hole” in the prosecution application.
“Failure to take any steps to identify who created the document places your Lordship in an impossible situation whereby you’re being asked to speculate as to whether or not it was created with first hand knowledge,” he told judge O’Hara.
The judge said he would rule on the admissibility of the cipher document on Wednesday morning.
Hutchings, from Cawsand in Cornwall, initially sat in the dock and listened to proceedings through a headset.
However, at one point proceedings were adjourned after the defendant reported feeling unwell.
When the hearing resumed, the judge excused Hutchings from attending the remainder of the day’s proceedings to enable him to go back to his hotel to rest.
The prosecution contend that Hutchings fired three shots at Mr Cunningham as he ran across the field and soldier B, who is now deceased, fired two.
As no bullets were recovered from the scene, the Crown has said it is not possible to prove which soldier fired the fatal shot that hit Mr Cunningham in the back and for that reason Hutchings is facing a charge of attempted murder.
Dr Goodson-Wickes, a former Conservative MP for Wimbledon who served in the First Gulf War as a lieutenant colonel, was a medical officer in the Life Guards at the time of the shooting in 1974 and was called to the scene in the aftermath.
He gave a statement on the day of the incident and, appearing in the witness box on Monday, he told prosecution barrister Charles McCreanor QC that he could add no more details given it happened so long ago.
Answering questions from defence barrister James Lewis QC, Dr Goodson-Wickes said he remembered seeing Hutchings at the scene.
He said he recalled him “gathering the aftermath of a serious incident”.
Mr Lewis asked him about dressings that had been applied to Mr Cunningham’s body.
If I was were asked to name somebody who was the epitome of the best class of senior British NCO the name of Mr Hutchings would have come readily to mind
Dr Charles Goodson-Wickes
The witness said Hutchings would have been involved in that first aid response.
“He would have certainly supervised in the application of bandages, I can’t say whether he personally applied them,” he said.
The barrister also asked whether soldiers would sometimes fire warning shots in such incidents.
Dr Goodson-Wickes said it would be “prudent” to fire warning shots rather than injuring anyone.
The defence also asked the witness whether he knew Hutchings.
He replied that he had known the defendant “very well”.
He said in a 50-year association with the military he had gained “ample experience” in assessing the calibre of non-commissioned officers (NCOs).
“If I was were asked to name somebody who was the epitome of the best class of senior British NCO the name of Mr Hutchings would have come readily to mind,” he added.
Mr McCreanor then asked Mr Goodson-Wickes whether he was aware that the Army’s “yellow card” instructions for using lethal force stated that warning shots should not be fired.
The witness said his knowledge of the rules of engagement were “very rusty”.
“I can’t recollect the substance of the yellow card,” he said.
Justice O’Hara said some of the information Dr Goodson-Wickes had given in court, such as his observations on what Hutchings was doing at the scene, was not detailed in his original 1974 statement.
The judge asked why that was the case given he had initially told the trial he was unable to add any further detail to his statement due to the period of time that had lapsed.
Dr Goodson-Wickes said his descriptions of Hutchings were what he would have “assumed” he would have been doing at the scene.
The trial continues and will sit again on Wednesday.
Hutchings is suffering from kidney disease and the trial is only sitting three days a week to enable him to undergo dialysis treatment between hearings.
Outlining an up-to-date timetable for the trial, on Monday the judge said it was anticipated that the prosecution could complete its evidence on Wednesday.
He said prosecution and defence were then set for legal exchanges on Friday on the admissibility of parts of the Crown evidence.
The judge said he would then plan to make a ruling on those further admissibility issues next Monday and he expected his ruling would then be followed by defence applications in relation to the trial.