THE High Court has quashed a decision not to prosecute the soldier who killed Derry teenager Daniel Hegarty,
The 15-year-old was shot twice in the head by a soldier in Derry in 1972.
Senior judges at the High Court have ruled thata 2016 decision not to prosecute was based on “irredeemably flawed” reasoning.
Judges said the evidential test imposed by then Public Prosecutions Service (PPS) Director Barra McGrory was too stringent.
The judges also said the four-year delay in reaching the decision not to prosecute was “manifestly excessive, inexplicable, unjustified and unlawful”.
Hegarty family solicitor Des Doherty said that the case will now go back to the PPS and they do not expect prosecutors to appeal the latest ruling.
“The family are very pleased with the decision. It is a very important decision that should be read widely because it may have implications for quite a lot of other cases in controversial circumstances involving agents of the state.”
A 2011 inquest found the boy posed no risk and was shot without warning.
It also prompted the coroner to refer the case back to the PPS.
Following the decision not to prosecute, Margaret Brady, Mr Hegarty’s sister, issued judicial review proceedings.
At the High Court, Lord Justice Treacy, sitting with Mr Justice Colton, pointed out that the PPS only needs to be satisfied there is credible evidence which could be proved – not that there will definitely be a conviction.
Referring to expert conclusions provided in November 2012, he said: “Had the decision been taken at that time it seems inevitable in light of the scientific evidence and the legal advice that the director must have concluded that the test for prosecution was then satisfied.”
Ruling that the director imposed too stringent a test, the judge continued: “We consider that the reasoning leading to the impugned decision not to prosecute is irredeemably flawed.
“In particular, the decision of the director is founded on an unreasonable and rationally unsustainable hypothesis which is inconsistent with the case made by the soldier.”
Daniel, a labourer, was unarmed when he was shot close to his home in Creggan during Operation Motorman, an army-mounted attempt to re-take no-go areas of Derry.
His cousin Christopher, 16, was also shot in the head by the same soldier, but miraculously survived.