Shivers found not guilty of murder of soldiers

Judge expresses concern about DNA evidence

Fri, May 3, 2013, 16:03

Brian Shivers has been found not guilty of the 2009 Real IRA murders of British soldiers Patrick Azimkar and Mark Quinsey.

At Belfast Crown Court this afternoon Mr Justice Donnell Deeny described as “ruthless and ferocious” the attack in which two soldiers were gunned down as they were collecting pizzas outside Massereene British army barracks in March 2009.

Mr Shivers who suffers from cystic fibrosis was also charged with six counts of attempted murder and one of possession of two firearms and ammunition with intent to endanger life in relation to the dissident republican attack.

At a previous trial Lurgan republican Colin Duffy was acquitted of the two murders while Mr Shivers (47) from Co Derry was convicted.

Mr Shivers successfully appealed his conviction which led to his retrial which concludedtoday.

Two other soldiers and two pizza delivery men were seriously injured in the attack which happened just hours before the soldiers were to deploy for service in Afghanistan. Another soldier and a civilian security guard suffered severe shock.

Graphic video footage of the attack was shown during the trial. It showed two gunmen firing from AK automatic assault rifles at the soldiers and delivery men. After the first bursts, they returned to fire more shots, with one of the gunmen reloading his weapon during the attack. In all 65 shots were fired in the attack, which was claimed by the Real IRA.

The prosecution case against Mr Shivers concentrated on evidence found in a remote country area about seven miles from Antrim where the gang failed in an attempt to burn the getaway car, a Vauxhall Cavalier before transferring to another vehicle allegedly driven by Mr Shivers

The prosecution detailed how two spent matches were found in the back seat of the Vauxhall which, it was alleged, contained Mr Shivers’s DNA. A spent match found outside the car, it was said, contained components of his DNA and a mobile phone found in the vehicle also had his DNA.

The prosecution was also dismissive of Mr Shivers’s alibi that he was at home with his girlfriend on the night of the murders, only leaving the house to collect a Chinese takeaway.

In finding Mr Shivers not guilty Mr Justice Deeny found a number of problems with the DNA evidence against Mr Shivers, who did not give evidence during the trial.

The judge referred to how the back seat of the purported getaway car was pushed down onto the matches during the subsequent investigation leading to the possibility of DNA transfer from the seat to the matches. The judge referred to how DNA from other people was also found on the matches.

He said that the two matches were also put into the same bag which could have led to DNA transfer from one match to the other.

Mr Justice Deeny said the presence of Mr Shivers’s DNA on the phone did not mean that he touched the phone between November 2008 when it was purchased and the evening of March 7th when the attack took place.

The DNA profile from the single match found outside the car also showed DNA from more than one individual.

Mr Justice Deeny said while the DNA on the matches indicated contact with the box of matches used by the person who set fire to the getaway car that contact “might have been an entirely innocent one”.

Matches and mobile phones were in common use and the presence of DNA upon them was very different from its presence on guns or explosive devices, he added.

The judge also said that the defendant’s car was a two-door coupe with personalised number plates referring to Mr Shivers’ name which was an “unlikely choice of vehicle” to take up to five people away from the scene.

Mr Justice Deeny said he could not be satisfied he was the driver or that he had set fire to the getaway car.

The judge said he generally found the evidence of the defendant’s girlfriend Lisa Peacock to be credible. She said there was nothing unusual about Mr Shivers’ car when he retuned home on the night of the attack.

She said there was no smell of petrol which was surprising when it was alleged that at least one of the people driven away from the rendezvous point by Mr Shivers had set fire to a Vauxhall Cavalier car.

The judge said that considering Ms Leacock was a Protestant woman from a Protestant area it made her very unlikely to be an adherent or supporter of Real IRA.

Outside the court Mr Shivers’ solicitor Niall Murphy said it was not a moment for “celebration” because the Azimkar and Quinsey families were still grieving while others were still suffering from their injuries. Nonetheless the case amounted to a “miscarriage of justice”.

Mr Murphy said his client was a seriously ill man who would have “died in prison” had he not been successful with his appeal and retrial in which new evidence was brought forward.

The failed prosecution was a “ cautionary tale” about the use of “tenuous” scientific evidence in high profile criminal cases, he added.

Mr Shivers made no comment other than to thank his solicitors Mr Murphy and Peter Corrigan for their “good work”.