James Wray (left) and William McKinney murdered by British soldier on Bloody Sunday in Derry in January 1972
Michael McKinney wants the High Court to impose an order ahead of his challenge to the decision not to prosecute Soldier F.
Thirteen people were killed when members of the Parachute Regiment opened fire on civil rights demonstrators in Londonderry on January 30, 1972. Another of those wounded on the day died later.
Soldier F was charged with the murders of William McKinney and James Wray, plus five counts of attempted murder, over the shootings.
Last week, however, the North of Ireland’s Public Prosecution Service (PPS) announced that he will not now stand trial.
Based on an assessment of the admissibility of evidence, it was decided that the test for prosecution was no longer met.
Criminal proceedings against Soldier F are due to be discontinued at Derry Magistrates’ Court on Friday.
But with Mr McKinney set to judicially review the PPS decision, his lawyers are seeking an interim order to stop the ex-paratrooper from being discharged.
At the High Court in Belfast today, barrister Fiona Doherty QC contended: “The balance of convenience lies firmly in our favour at this stage.”
Relatives of five of the Bloody Sunday victims are already taking separate legal action against previous decisions not to charge other former soldiers with their murders.
That case is listed for hearing in September, and Mrs Justice Keegan pointed to “very clear parallels” in the two challenges.
During the preliminary exchanges, counsel for Soldier F indicated opposition to any order being made to prevent the prosecution being discontinued.
Mark Mulholland QC argued that his client would be left in a state of uncertainty.
“This accused enjoys the presumption of innocence,” he stressed.
Mr Mullholland added: “Discontinuance is not an acquittal, the law does permit the re-instigation of criminal proceedings at the committal stage.”
Judges are expected to rule on the application for interim relief on Thursday.
Outside court Mr McKinney’s solicitor pointed out that if his challenge ultimately succeeds the prosecution of Soldier F will probably be revived.
Fearghal Shiels, of Madden & Finucane law firm, said: “There would be no prejudice caused to Soldier F by keeping the proceedings live before the court.
“He is not in custody or subject to any bail conditions, and in fact is still at risk of prosecution for the murder of Michael Kelly in separate proceedings already before the High Court.”
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