The court heard that the prosecution accepted that if the evidence was excluded the charges against the defendants must fail.Joe McCann, 24, was shot dead as he ran away from the police and army on Joy Street in Belfast in April 1972.
The defence team argued that all of the evidence was inadmissible and should be excluded under Article 74 and 76 of the Police and Criminal Evidence Northern Ireland Order 1989. Mr Justice O'Hara said the prosecution had accepted that if the evidence was excluded the charges against soldiers A and C must fail.The prosecution accepted that the 1972 statements were not admissible on a number of grounds, including that the soldiers were ordered to make them, they were not conducted under caution, there was no access to legal representation and the army policy of not asking soldiers to provide an explanation or rationale for their actions.
He said: "What was required in this case, and what never took place was that the PSNI should have interviewed the defendant under specific caution to suspect a crime of murder. He said both strands of Article 74 applied, that there was oppression of the defendants in 1972, and that the statements may have been obtained as consequence of things said and done that would likely render any confession unreliable.