A TERMINALLY ill man jailed for the killing of two soldiers at a military base in Antrim was wrongly convicted of murder, the Court of Appeal in Belfast heard yesterday.
Lawyers for Brian Shivers claimed it was legally impossible for him to have been found guilty on the facts as a secondary party.
Shivers is seeking to overturn a verdict that he played a role in the murder of Sappers Mark Quinsey (23) and Patrick Azimkar (21).
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.
Earlier this year Shivers (46), from Magherafelt, Co Derry, 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 44-year-old republican from Lurgan, Co Armagh, was acquitted of all charges, including the two murders.
It emerged during the trial that Shivers suffers from cystic fibrosis and has only a few years to live.
He was found guilty on the strength of a DNA link to matches found in the partially burned-out getaway car used in the gun attack. Shivers was also found to have lied about his whereabouts and actions on the night of the murders.
The judge who convicted him accepted he played a lesser role than the gunmen, but drew attention to his alleged attempt to destroy the Vauxhall Cavalier.
Yesterday Patrick O’Connor QC, for Shivers, said the guilty verdict was unsafe. He argued there was no actus reus – criminal act – prior to the murders which is legally required in law.
“The findings of fact by the learned trial judge provide no basis at all for these convictions,” Mr O’Connor contended.
“These findings were confined to conduct by Mr Shivers after the attack. There was no finding that Mr Shivers, by inference, had been party to a joint enterprise to carry out the attack.”
Heavily bearded and dressed in a short-sleeved shirt, Shivers was brought into court in handcuffs for the appeal hearing.
His barrister acknowledged the terrible consequences of the shootings. “These were appalling offences which caused immense loss and suffering to the victims and families,” Mr O’Connor said.
“Nothing we say can, nor is intended to, detract from that.” However he insisted that to convict his client of the murders as a secondary party the trial judge had to find proven an act of complicity in the crime.
“The actus reus must be an act of aiding, abetting, counselling or procuring,” he said. “There is a fundamental problem here: the prosecution never suggested a single act which could amount to aiding, abetting, counselling or procuring.”
Terence Mooney QC, for the Crown, rejected the case.
He told the court the gunmen could only be confident enough to carry out the attack if they knew beforehand that the car was going to be destroyed at a rendezvous point.
“Having said ‘Yes, I will be there’, that is an act, although it is a spoken act, it is an act as much as any other in the sequence that allowed the gunmen to escape,” Mr Mooney said.
“The assistance is that they have confidence to carry out their role, ie they are the killers, and to escape knowing that they have an escape avenue.”
Lord Chief Justice Sir Declan Morgan, sitting with Lord Justices Higgins and Girvan, reserved judgment in the appeal.
Sir Declan said: “There are some delicate matters here that we want to look at very carefully.”