Joe McCann: 'Remarkable' that soldiers not arrested before trial

Joe McCann was shot near his home in the Markets area of Belfast in April 1972

A judge has described it as "remarkable" that two soldiers accused of the murder of an Official IRA man in 1972 were not arrested nor interviewed before they were charged.

Joe McCann, 24, was shot in disputed circumstances in Joy Street in the Markets area of Belfast.

Soldiers A and C, both in their 70s, have pleaded not guilty.

Both men admit opening fire on Mr McCann but claim they acted within the Army's rules of engagement.

The judge made his remark during an application for evidence to be excluded from the non-jury trial being heard at Belfast Crown Court.

While both suspects were interviewed in 1972 by the Royal Military Police and informed they would not be prosecuted, it is later questioning by the Historical Enquiries Team (HET) in 2010 which the soldiers' barristers wish to be excluded.

The HET report forms a substantial part of the prosecution evidence.

However, an investigator for the HET said he did not expect the soldiers to be prosecuted based on its contents.

'Limitations'

After a prosecution barrister confirmed that neither soldier has ever been spoken to by police, the judge said he found it a "remarkable feature of this case that they were not interviewed by the PSNI and they were not arrested, but are in court on trial for murder".

Lawyers representing both soldiers cited oppression in the way the men were questioned by the Army in 1972.

A barrister for Soldier A added that their client had a stroke in 2005 and so their recollection was affected in the report they gave to the HET in 2010.

Soldier C's lawyer questioned the legality of the original interview in 1972 and said the HET interviews should be excluded as "that process was tainted by the oppressive initial statements".

A prosecution barrister accepted there were "limitations" when it came to evidence related to a case dating back so many years.

When asked by the judge if "without the interviews, the case would fall", the prosecutor replied: "On that basis, My Lord, yes."

The judge said he would make a ruling on the application on Friday morning.