RELATIVES of Derry teenager Daniel Hegaerty shot dead almost 45 years ago have won legal permission to challenge a decision not prosecute the British soldier who fired the fatal shots.
High Court judges granted the family leave to seek a judicial review of the conclusion reached over the death of Daniel Hegarty.
Based on new information, they also advised the Hegarty family’s lawyers to write to the Director of Public Prosecutions inviting him to reconsider the decision before the case goes to a full hearing.
Daniel was aged just 15 and unarmed when he was shot twice in the head during an army operation in the Creggan area of the city in July 1972.
His cousin Christopher, 16, also sustained a bullet wound to the head but survived.
The shootings occurred at the height of the Troubles as British troops were deployed in Derry in an attempt to clear so-called no-go areas.
In 2011 an inquest jury unanimously found Daniel posed no risk and had been shot without warning, prompting the coroner to refer the case back to the Public Prosecution Service.
But in March last year it was decided not to pursue charges against Soldier B, who fired the fatal rounds, on the basis of no reasonable prospect of a conviction.
According to the PPS forensic experts were unable to state that ballistics evidence is inconsistent with Soldier B’s account of the circumstances in which he fired.
Daniel’s sister, Margaret Brady, is now challenging the Director of Public Prosecutions over that decision.
Her barrister claimed it was a perverse and irrational outcome.
Michael Mansfield QC argued that expert evidence completely refutes assertions that the bullets were fired in self-defence.
Instead, he contended, the scientific opinion backed the family’s belief that it was an unlawful killing at point-blank range.
The court heard that Soldier B fired from a distance of less than 10 feet.
In a statement he claimed to have pulled the trigger on the machine gun while it was on the ground.
According to Mr Mansfield that was a lying account contrived to suggest a fear of a non-existent threat.
Removal of the self-defence claims leaves a reasonable prospect of gaining a conviction if a prosecution was pursued, he insisted.
Counsel for the Director countered that the case was subjected to scrupulous forensic analysis, with two expert reports and advice from senior counsel.
Judges were told one of the forensic scientists “modified” the position taken at the inquest after studying another statement from Soldier B.
The revised view was that his account could possibly be consistent with the forensic evidence.
But after analysing full expert reports, Lord Justice Weatherup ruled that leave to seek a judicial review should be granted.
Soldier B is also to be put on notice of the legal proceedings.
Following the decision the family’s solicitor, Desmond Doherty, confirmed: “I have been instructed by the Court to write to invite the Director to reconsider his decision before the full hearing in September.”