Shivers to face Massereene retrial
A terminally ill man whose convictions for murdering two soldiers were quashed is challenging the decision to have him stand trial again.
Published 16/01/2013 12:00
Brian Shivers' lawyers are seeking permission to go before the Supreme Court in London in a bid to overturn a ruling that he should face fresh criminal proceedings.
Details emerged as the 47-year-old was refused bail on Wednesday ahead of the new trial which could get underway in Belfast in March.
Senior judges ruled that he should remain in custody due to the level of risk associated with the case.
Shivers, from Magherafelt, Co Londonderry, has successfully appealed his conviction for the murders of Sappers Mark Quinsey, 23, and 21-year-old Patrick Azimkar.
The soldiers were gunned down by the Real IRA as they collected pizza at the gates of Massereene Barracks in Antrim in March 2009, just hours before they 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' lawyers argued that it was legally impossible for him to be convicted of murder because there was no actus reus, or criminal act, prior to the murder.
On Tuesday the Court of Appeal ruled that the guilty verdict against him was unsafe because no finding was made on when he allegedly became aware of the murder plot.
The trial judge was held to have failed to deal with the concept of a joint enterprise.
Shivers was brought to court from prison to hear senior Crown counsel Terence Mooney QC confirm that the prosecution was seeking a retrial.
He argued that a prima facie case remains against the accused, and that the interests of justice demanded such an outcome.
"There is a finding of fact that this appellant participated in the attempted destruction of a car which had just been used to attack and murder soldiers," Mr Mooney said.
"The issue before the trial judge would be whether or not he had prior knowledge of that attack or contemplated that murder was one of a number of potential crimes that might be committed by the principal whom he had arranged to meet shortly after the attack took place."
In the circumstances we consider it is appropriate that there should be a retrial in this case and we so order.
Lord Chief Justice Sir Declan Morgan
Defence barrister Patrick O'Connor QC contended, however, that a retrial risked bringing the administration of justice into disrepute.
He said the "building blocks" of the prosecution case had already been rejected first time around.
Mr O'Connor added: "The public interest aspect of this is very powerful indeed in a case involving such appalling murderous attacks.
"But the public interest is that there should be a trial on the merits.
"A retrial would offend against two extremely fundamental principles of law: damage to the integrity of the administration of justice, and double jeopardy."
But Northern Ireland's Lord Chief Justice Sir Declan Morgan, sitting with Lord Justices Higgins and Girvan, held that the double jeopardy issue did not feature in a case involving a misdirection, addinga retrial was in the interest of justice.
Mr O'Connor asked the judges to certify their bid to take the case to the Supreme Court on a point of law of general public importance.
He questioned whether it was lawful to order a retrial having quashed the conviction for an error of law, claiming the only lawful verdict on the findings of fact was acquittal.
Sir Declan told him that the question should be reformulated before it would even be considered for certification.
Should leave to go to the Supreme Court be refused then the defence challenge would be ended.
Both sides were urged to be ready for a potential new trial to get underway on 4 March.
Shivers' bid to be released on bail until then was resisted due to fears he may flee or commit offences.
Setting out how the killings were part of a series of terrorist attacks, Mr Mooney argued: "The campaign we suggest continues today.
"We say the evidence suggests at this stage that the appellant was an adherent who will support the aims and activities of terrorist organisations who, it is plain, are intent on carrying out further acts of violence," he told the court.
Mr O'Connor contended, however, that Shivers was a man with a clear record who "hadn't even been on the radar" before his arrest.
He rejected claims that his client may flee if released, submitting that he was "anchored" to medical treatment in Northern Ireland.
The barrister described services available in the Republic as "woeful" by comparison.
Shivers would probably die if he decided, in a rush of blood to the head, to escape across the border, the court heard.
Mr O'Connor said his client was the longest surviving cystic fibrosis sufferer in Northern Ireland.
But he has spent a quarter of the last six months in hospital, lost 10% of his body weight and 30% of his lung capacity, judges were told. Despite the arguments, Sir Declan held that the risk to the public justified Shivers being kept in prison.
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