Shivers has conviction quashed
A terminally ill man jailed for the killing of two soldiers at a military base in Antrim had his conviction quashed today.
The Court of Appeal ruled that the guilty verdict returned against Brian Shivers was unsafe because no finding was made on when he allegedly became aware of the murder plot.
Shivers will now remain in custody until the Public Prosecution Service (PPS) decides whether to seek a retrial.
The 47-year-old, from Magherafelt, Co Derry, was challenging his conviction for the murders of Sappers Mark Quinsey (23) and 21-year-old Patrick Azimkar.
The victims were gunned down by the Real IRA as they collected pizza at the gates of Massereene Barracks in March 2009. The shootings were carried out hours before the soldiers were due to be deployed to Afghanistan.
Last February, Shivers was ordered to serve a minimum 25 years in prison for his part in the killings. He was also found guilty of six counts of attempted murder and one of possession of two firearms with intent to endanger life.
His co-accused, Colin Duffy, a 45-year-old republican from Lurgan, Co Armagh, was acquitted of all charges, including the two murders.
Shivers, who suffers from cystic fibrosis and has only a few years to live, was originally found guilty as a secondary party who aided and abetted by setting fire to the getaway car.
DNA analysis had established a link to matches found in the partially burnt-out Vauxhall Cavalier used by the gunmen.
But Shivers’s lawyers argued that it was legally impossible for him to he convicted of murder because there was no actus reus, or criminal act, prior to the murder.
Delivering judgment today, Lord Chief Justice Sir Declan Morgan said the trial judge had not dealt with the concept of a joint enterprise.
“The issue for the court was whether it should be inferred that there was a common enterprise to which the appellant agreed prior to the attack to carry out a shooting attack with intent to kill,” Sir Declan pointed out.
“The learned trial judge made no finding on this issue.” Sir Declan, sitting with Lord Justices Higgins and Girvan, held that the test applied by the trial judge required no knowledge of the attack until a rendezvous with the gunmen.
On that basis he stated: “We do not accept that a person who provides assistance after a murder with full knowledge of what has happened thereby becomes guilty of murder.
“There is no authority to support such a proposition. The learned trial judge made no findings as to when the appellant had the relevant knowledge.” He added: “We conclude, therefore, that the appeal must be allowed.”
Lawyers were told that a slot was available next month at Belfast Crown Court for a possible retrial. Counsel for the PPS is expected to confirm tomorrow whether it is seeking fresh criminal proceedings.
Shivers, who maintains his innocence, appeared by prison video-link to hear the outcome of his appeal. His lawyer said he was relieved by the verdict but expressed concerns over his health.
Niall Murphy, of legal firm Kevin R Winters and Co, said: “This is an example of the justice system working, however, we are gravely concerned at our client’s ongoing acute medical condition.
“He has been admitted to hospital for 56 days across three separate admissions since the hearing of his appeal in May and he is routinely refused access to his medication.
“Mr Shivers has been through a terrible ordeal whereby he has been repeatedly assaulted/abused whilst in prison and in hospital, where he is continuously under armed guard.”
He added: “Mr Shivers looks forward to the end of this ordeal and hopes that this judgment is the first step towards that.”