The decision not to prosecute three SAS soldiers who shot dead two Derry men was contrary to the weight of the evidence in the case, a lawyer claimed in the High Court in Belfast yesterday.

Danny Doherty and William Fleming were killed outside Gransha Hospital on December 6 1984. It was alleged they had been involved in an attempt to shoot an off-duty UDR man.

A total of 59 shots were fired at them.

The soldiers did not give

evidence at the inquest but an officer who was in charge of the operation said: “If the police had been called two people might not have been dead, with hindsight.”

The jury at Mr Doherty’s inquest added a rider to their verdict of death by gunshot wounds: “We find that the five-man army unit should have tried to arrest this person or at least informed the RUC earlier and his life might have been saved.”

In court yesterday widow Julie Doherty, from Rathlin Drive, Creggan, applied for a judicial review of the DPP’s decision not to prosecute three soldiers for unlawful killing and refusing to provide her with “full and sufficient” reasons for not doing so.

Seamus Treacy QC, told Mr Justice Girvan: “The decision not to prosecute the soldiers was perverse.”

He said the police investigation was inadequate and ineffective and did not constitute the type of serious investigation necessary in circumstances where members of the security forces used lethal force.

“The available evidence undermines the case of self-defence and points to the use of excessive force on the part of the soldiers,” Mr Treacy said.

“The conclusion of the inquest jury amounted in effect to unlawful killing which should have weighed heavily in favour of a prosecution.”

Bernard McCloskey, QC, for the DPP, said a senior official in the Director’s office had provided a reasonable explanation for the decision – that the evidence available was insufficient to provide a reasonable prosp-ect of obtaining a conviction.

The official had also concluded that the evidence was not sufficient to afford a reasonable prospect of rebutting the defence that the firing of shots by the soldiers constituted the use of reasonable force in self-defence or the prevention of crime.

Mr Justice Girvan reserved judgment.

Outside the court solicitor Fearghal Shiels, of Madden and Finucane, said: “Mr Doherty was hit 19 times and the scientific evidence established that he was shot from the rear. Six of the shots hit him while he was lying on the ground.

“Despite the inquest jury’s conclusions and the scientific evidence which completely undermines any notion that the soldiers were acting in self-defence, the DPP, relying on the RUC’s uncritical acceptance of the soldiers’ self-serving statements, have failed to give any adequate explanation for their failure to prosecute.”