The army veteran from Cornwall, died at the Mater Hospital in Belfast after contracting Covid-19.
Northern Ireland’s Public Prosecution Service has defended the decision to prosecute veteran Dennis Hutchings over a Troubles shooting.
Hutchings died in hospital in Belfast on Monday after contracting Covid-19, leading unionist politicians to raise concerns that the case against him had been allowed to proceed.
DUP leader Sir Jeffrey Donaldson challenged the prosecution service over what new and compelling evidence led to the trial.
Deputy Director of Public Prosecutions Michael Agnew said: “The PPS decision to prosecute Mr Hutchings for attempted murder was taken after an impartial and independent application of the Test for Prosecution.
“The Test for Prosecution requires a consideration of whether the available evidence provides a reasonable prospect of conviction and, if it does, whether prosecution is in the public interest.
“Whilst a review of a previous no prosecution decision does not require the existence of new evidence, the police investigation in this case resulted in a file being submitted to the PPS which included certain evidence not previously available.
“In the course of the proceedings there were rulings by High Court judges that the evidence was sufficient to put Mr Hutchings on trial and also that the proceedings were not an abuse of process.”
Mr Agnew said the PPS recognised the “concerns in some quarters” in relation to the decision to bring the prosecution.
He added: “We would like to offer our deepest sympathies to the family and friends of Mr Hutchings, and acknowledge their painful loss.
“However, where a charge is as serious as attempted murder, it will generally be in the public interest to prosecute.”
“Our thoughts are also with the family of John Pat Cunningham who have waited for many decades in the hope of seeing due process take its course.”
Eighty-year-old Hutchings had been suffering from kidney disease and the court had been sitting only three days a week to enable him to undergo dialysis treatment between hearings.
He was charged with the attempted murder of John Pat Cunningham in Co Tyrone in 1974.
The former member of the Life Guards regiment, from Cawsand in Cornwall, had denied a count of attempted grievous bodily harm with intent.
Mr Cunningham, 27, was shot dead as he ran away from an Army patrol across a field near Benburb.
People who knew him said he had the mental age of a child and was known to have a deep fear of soldiers.
Hutchings died at the Mater Hospital on Monday while in Belfast for the trial.
Hours earlier, the trial had been adjourned for three weeks in light of Hutchings’ health.
Sir Jeffrey said he had been shocked when the decision was taken to bring the case to trial.
“He has been literally dragged before the courts,” he told the BBC.
“Dennis is an honourable man, he wanted to clear his name, he was prepared to go despite the risk to his health but I do think this morning there are serious questions that need to be asked of those who took the decision that it was in the public interest to prosecute this man.”
Sir Jeffrey said Hutchings’ actions had been investigated at the time.
“So it is not a question of this being something new, and therefore the question I have for the PPS is what was the new and compelling evidence that meant it was in the public interest to bring an 80-year-old in ill health on dialysis at severe risk to his health before the courts, and I think that is an entirely valid question that I am entitled to ask this morning,” he said.
The death of Hutchings was raised by Ulster Unionist Party leader Doug Beattie as a matter of the day in the Northern Ireland Assembly on Tuesday.
Mr Beattie extended his condolences to the families of Hutchings as well as John Pat Cunningham.
He told MLAs that just as the family of Mr Cunningham deserves truth and justice, so does the Hutchings family.
“People need to understand or find out why his case was elevated above all other cases, why his case suddenly ended up at the top of the pile … and this goes to the heart of some of the issues that we are having to deal with in what is a difficult legacy process which is affecting our present here now,” he said.
“That is something we do have to look into, it is something that we do need to examine, to be fair to the family, to understand why this was elevated, we need to understand what was the new evidence which elevated this case and we do need to find out what was in the public interest to bring this case forward.”
Sinn Fein MLA Linda Dillon described the death of Hutchings as a “human tragedy”.
However, she cautioned those criticising the PPS for bringing the case to trial, telling MLAs they are legislators and should not interfere in the judicial process.
“This was a judicial process, it is not for us to interfere in that,” she told MLAs.
SDLP MLA Dolores Kelly told MLAs she disputes claims by some over whether the prosecution was in the public interest.
“I am not aware of the level of evidence but it clearly met the very high threshold set for prosecution by the PPS and that’s why it went to trial,” she said.
Alliance Party MLA Paula Bradshaw said she is concerned at those “playing politics” with the death of Hutchings.
“It is essential to note that decisions on prosecution and fitness to stand trial are matters for the independent PPS and judiciary, they are not matters in which politicians should be involving themselves,” she said.
Meanwhile, TUV leader Jim Allister told MLAs that Hutchings “was needlessly dragged to court from his home and his family in Cornwall, in what had all the appearances of a witch hunt of a former soldier”.
