Published Friday, 18 September 2009
Lord Justice Coghlin ruled that Brian Shivers should be released under tight conditions because he could not be assured the proper medical safeguards were in place within the jail.
Shivers, 44, of Sperrin Mews, Magherafelt, Co Londonderry, is charged with the murders of sappers Mark Quinsey, 23, and Patrick Azimkar, 21, at the gates of Massereene Army barracks in Antrim in March.
He is also accused of multiple attempted murders and possessing firearms and ammunition with intent in connection with the Real IRA ambush on soldiers collecting food from Pizza delivery men.
Although he was refused bail last month, his legal team returned to the High Court to allege serious failures in prison management of his condition which led to him being admitted to hospital with a worsening lung complaint on August 31.
Defence QC Orlando Pownall claimed that at various stages Shivers did not receive antibiotics, other medication essential to enable him to eat, and a spray he inhales.
The accused's already reduced lung capacity was said to have dropped by a fifth to 40%.
"If it goes down to 30% he will require a lung transplant and the prognosis in those circumstances, he will forgive me for mentioning in his presence, is very poor," the barrister claimed.
Mr Pownall also told the court that Shivers has received an open apology from Belfast's public health authority.
"One is bound to wonder why they see fit to apologise for, in fairness to them, his care whilst in custody is not their responsibility."
Open apology
The defence counsel further disputed Crown claims that Shivers' weight has been stable since he was remanded in July.
"It's not accepted by the applicant that his weight has remained at 75kg. I'm informed that he has lost between 7-8kg whilst in custody," he added.
Crown lawyer Tessa Kitson contended there had been a misunderstanding over Shivers medication.
Ruling on the application Lord Justice Coghlin held that there had been "an administrative mistake to put it at its lowest".
The judge also expressed concern at defence claims that prison authorities ignored a direction to transcribe evidence a medical consultant gave at the first bail hearing.
Despite acknowledging he risk of serious offences, Lord Justice Coghlin said he was prepared to consider admitting Shivers to bail.
However, he ordered that a £100,000 cash surety be lodged in court, along with the deeds to a £130,000 house owned by Shivers' mother, before he could be released.
A night-time curfew and daily reporting to police was also imposed.