THE COURT OF Appeal in Belfast has allowed the appeal of Brian Shivers against his conviction on two counts of murder, six counts of attempted murder and one of possession of two firearms and ammunition with intent to endanger life.
The offences were related to the attack by two gunmen on soldiers in the Massereene barracks in Co Antrim on 7 March 2009, which was claimed by the Real IRA.
Two British soldiers were killed in the attack, Mark Quinsey (23) and Patrick Azimkar (21).
Shivers was sentenced on 10 February 2012 to life imprisonment with a minimum tariff of 25 years in respect of the murders, and life imprisonment with a minimum term of 10 years on the other counts.
The appeal was grounded on a number of issues:
- That the trial judge was wrong to suggest that, if Shivers had set fire to the car, there was no dispute that he would be guilty of the offences as a secondary party.
- That in order to be guilty of the offences as a secondary party it was not sufficient to prove that assistance had been provided after the attack. Instead, it was necessary to establish Shivers had agreed to provide the assistance before the attack in contemplation of the type of offence which was carried out
- That the trial judge had convicted Shivers as a secondary party when the prosecution had presented the case as one of joint enterprise.
The Lord Chief Justice noted that at an early stage in the trial, the prosecution had indicated the case against Shivers would proceed as an accessory after the fact or a party to the joint enterprise.
The Chief Justice said that it did not appear that issue had been taken with the prosecution characterisation of the case against Shivers and on that basis the Court accepted that the trial judge was wrong to state that if Shivers had set fire to the car he would be guilty as a secondary party.
He said, however, that the Court did not consider that affected the safety of the conviction.
He said whether or not any such concession had been made, it was still a matter for the trial judge to determine what facts he found proved, what inferences he drew, and what conclusions as to the guilt or otherwise of Shivers followed.
The Court heard that the prosecution case against Shivers was circumstantial and relied upon several strands.
It alleged the suggested role of Shivers as the person who set fire to the vehicle used in the attack required the availability of petrol and matches and his destruction of the vehicle was important in hindering detection.
The prosecution alleged it was inconceivable that the person who provided transport for the gunmen and the driver of the attack vehicle would not be fully aware of the nature of the operation.
The Chief Justice said that despite the manner in which the prosecution case was presented, the trial judge did not refer to the concept of joint enterprise in his judgment. He said the issue for the court was whether it should be inferred that there was a “common enterprise” to which Shivers agreed before the attack, to carry out a shooting with intent to kill.
He said that the trial judge had made no finding on the issue and consequently the Court of Appeal did not accept the Shivers’ submission that the trial judge rejected the joint enterprise case.
The Chief Justice said that the Court did not accept that a person who provides assistance after a murder with full knowledge of what has happened becomes guilty of murder and that there was no authority to support such a proposition.
The Chief Justice said it was the view of the Court that “this was not a secondary party case in which contemplation of an offence arose and that a conviction on that basis was unsafe”.
He said the case had been presented as one of joint enterprise where the issue for the court was whether it could be inferred that Shivers had participated in a joint venture realising that the principal might commit a crime of the type committed.
The Chief Justice said that case was not addressed by the trial judge.
Based on this, the Court was allowing the appeal. It will listen to submissions regarding a retrial.