Two former paratroopers accused of murdering IRA commander Joe McCann nearly 50 years ago have denied killing him at the start of their trial this morning – as the court heard he told them as he died ‘You got me cold, I’ve no weapon.’
Father-of-four Mr McCann, 24, was shot in the back in the Markets area of Belfast in 1972.
Two veterans – anonymised in court as Soldiers A and C – who are both in their 70s are on trial for killing him in Belfast Crown Court.
They are the first to go to court in front of Mr Justice O’Hara since the Good Friday Agreement and their case is expected to last four weeks. There is no jury over fears one could be tampered with to frustrate justice.
It is one of a number of legacy cases, referring to incidents which took place before the signing of the Belfast Agreement in 1998, on which Northern Ireland’s Public Prosecution Service has taken decisions.
Today the Crown lawyer – who has not been named – said the men had opened fire on Mr McCann in the back as he ran away in an action which was unlawful and not justified.
‘On any view of the facts, the level of force used was unreasonable,’ he said.
The QC added: ‘Both soldiers shot Mr McCann in order to stop him from getting away and avoiding being arrested.
‘The prosecution case is that in all circumstances that shooting was not legally justified.’
During the opening statement, he said both soldiers believed Mr McCann would have been armed.
But they said no weapon was found when they searched him as he lay wounded on the ground.
Father-of-four McCann, 24, died after being shot in the Markets area of Belfast in 1972
Supporters of Two former paratroopers at Laganside Court this morning ahead of the trial
The court heard that in a statement provided in the aftermath of the shooting, soldier A said Mr McCann spoke to them as he lay dying.
The soldier said Mr McCann said: ‘You got me cold, I’ve no weapon.’
The former soldiers will remain anonymous throughout the proceedings.
Former veterans minister Johnny Mercer, who is also attending, left his ministerial role last week after expressing frustration at a lack of progress on legislation to protect British veterans who served during the Troubles from prosecution.
The two defendants wore suits and face masks and were seated at the side of the courtroom, in an area usually reserved for the jury.
Opening the case, a prosecution lawyer told the court that Mr McCann was a senior member of the Official IRA who was suspected of involvement in a number of attacks carried out by the republican group.
He said the shooting took place after an RUC Special Branch Officer attempted to arrest him on Joy Street in the Markets area of Belfast. Mr McCann evaded detention and ran away.
The Crown lawyer said at that point soldiers A and C, and another now deceased paratrooper – solider B – opened fire. They had been manning a checkpoint in the area at the time.
The lawyer said shooting Mr McCann in the back as he ran away was unlawful and not justified.
‘On any view of the facts the level of force used was unreasonable,’ he said.
MP Jonny Mercer is also attending the trial, which is being heard by a judge with no jury
The family of Joe McCann arrive at Laganside Court with Solicitor Niall Murphy this morning
Why is this a No Jury Trial? Northern Ireland and the reason for NJTs
Unusually the case is being heard by a judge with no jury.
It came after the Director of Public Prosecutions issued a certificate for a non-jury trial.
Trials by judges alone are only usually held when there is a fear that a jury could be tampered with in cases concerning paramilitary organisations.
In this case, the two defendants had begun processes to challenge the decision, but abandoned the procedure.
Their lawyers had originally claimed the no-jury decision was wrongly based on the 2007 Justice and Security (Northern Ireland) Act.
Previous to 2007 the ‘Diplock system’ let NJTs carry on because the terrorist intimidation of jurors in Northern Ireland was an obstacle to dealing effectively with terrorist crime in the courts.
Now the Act gives statutory provisions that allow no jury if is is ‘deemed necessary for a small number of exceptional cases’ where the jurors could impair justice.
The most recent figures on record show during 2019, 14 non-jury trials took place in Northern Ireland.
MP Mr Mercer was accompanied in court by Northern Ireland Veterans Commissioner Danny Kinahan.
Mr Mercer said the trial of the two former soldiers is ‘unfair’.
‘I think in any conflict, it is messy, it is unpleasant, it is a horrible process to go through for both sides,’ he added.
‘What I don’t think is – 50 years later – you get a truly accurate picture of what happened.
‘I think it is unfair to try and apply today’s standards of operations and retrospectively apply them to that time and try to get justice.
‘I have huge sympathy on all sides but we need to move on in Northern Ireland.
‘What is happening today, I don’t think is fair and that’s why I am here.
‘The reality is today, as we stand here, there are two individuals in court for something that happened 50 years ago.
‘They served their country, they did their best. War is messy and we need to find a solution for everybody.’
Mr Mercer denied he is ‘interfering’ in the trial, adding he is there to ‘learn about the process’.
A small group of protesters, some dressed in military uniform, were picketing outside the court in Belfast ahead of the trial.
Demonstrators held banners expressing opposition to historical prosecution of former British soldiers.
Veterans and legal experts claim that the prosecutions of soldiers over incidents in Northern Ireland are ‘political’ and an attempt to appease Sinn Fein.
They cite a focus on shootings involving the security services – even though many of those at the hands of the Provisional IRA, who were responsible for most of the deaths during the conflict, remain unpunished.
Who decides to prosecute?
The Legacy Investigations Branch of the Police Service of Northern Ireland reviews all murder cases linked to the Troubles.
It does not prioritise military cases, which account for approximately 30% of its workload.
Any decision by the LIB to prosecute is referred to the Director of Public Prosecutions for Northern Ireland. The MOD, and the British Government, is entirely independent of this process.
Mr Mercer said he believed the Government was guilty of a ‘gross betrayal’ by failing to do more to protect British veterans who served during the Troubles.
He said: ‘The reality is that for these people, their experiences after having served this nation, 50 years later, they are constantly being dragged over to Northern Ireland, and asked to relive their experiences, it is people are drinking themselves to death.
‘It is breaking up families, it is ruining our finest people. And all they did was serve at the behest of this government at the behest of the House of Commons, to uphold the rule of law on the peace and when the peace in Northern Ireland.
‘And yet now we’re happy to cut them off to people who want to rewrite history. And that is all that’s going on, you know that nothing’s changed here.
‘But the politics, and for me, it’s a gross betrayal of people who signed up to serve in the military.’
Mr Mercer has been heavily involved in the Overseas Operations (Service Personnel and Veterans) Bill, which was being considered by MPs this week as it went through its final stages in Parliament.
The legislation was developed in response to legal claims made after operations in Iraq and Afghanistan, but does not cover incidents in Northern Ireland.