A decision not to prosecute three SAS members who shot dead two men in Derry 20 years ago was upheld in the High Court in Belfast yesterday.
Mr Justice Girvan dismissed an application for a judicial review brought by Julie Doherty, widow of one of the men killed outside Gransha Hospital on December 6 1984.
At the time of the shooting it was alleged that Danny Doherty, who was armed, and William Fleming had been about to ambush an off-duty UDR soldier.
A total of 59 shots were fired by the SAS soldiers and the jury at Mr Doherty’s inquest stated: “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.”
The application against the Director of Public Prosecutions by Mrs Doherty, from Rathlin Drive, Creggan, challenged the failure to prosecute the soldiers and also queried the refusal to provide her with “full and sufficient” reasons for not doing so.
Mr Justice Girvan said in a reserved judgment that the decision not to prosecute could not be challenged as it was based on the prosecutor’s assessment of evidence.
“It has not been demonstrated that the prosecuting authority approached the exercise in arriving at its decision on an incorrect, irrational or improper basis,” he said.
“The no-prosecution decision was made in 1986. In 2004 it is much too late for the applicant to seek effectively to reopen a decison made in 1986 and not challenged within a reasonable time thereafter.”
Eugene Burns, of solicitors Madden and Finucane, said afterwards: “We are disappointed at the decision, particularly in the light of the inquest jury’s conclusions and the scientific evidence that Mr Doherty was shot from the rear and six shots hit him while he was lying on the ground.
“We will consider the judgment to determine whether an appeal should be lodged.”
