The North’s Public Prosecution Service is considering whether to institute fresh proceedings after the Court of Appeal in Belfast ruled the murder conviction of Brian Shivers for his alleged part in the killing of two British soldiers in Antrim almost four years ago was unsafe.
The prosecution had linked him to the murder by evidence from a burnt-out getaway car.
Mr Shivers, charged with Lurgan republican Colin Duffy with the March 2009 murders of soldiers Patrick Azimkar and Mark Quinsey, had his conviction quashed yesterday. He must remain in custody until the prosecution service decides on a retrial.
The Court of Appeal ruled the verdict against Mr Shivers, who has cystic fibrosis, was unsafe because no finding was made on when he allegedly became aware of the plot.
In January last year, Mr Shivers (47) from Magherafelt, Co Derry, was ordered to serve a minimum of 25 years for 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, Mr Duffy, was acquitted of all charges.
Geraldine Azimkar, mother of Patrick Azimkar, said she and her husband Mehmet felt “very let down”.
“It seems scandalous really that this terrible murder happened and the attempted murders happened and it looks like no one is going to be held to account for it.” The soldiers were gunned down by dissident republicans as they collected pizza at the gates of Massereene Barracks.
DNA analysis
Mr Shivers was originally found guilty as a secondary party who aided and abetted by setting fire to the car. DNA analysis established a link to matches found in the partially burnt-out Vauxhall Cavalier.
But Mr Shivers’s lawyers argued it was impossible for him to be convicted of murder because there was no actus reus, or criminal act, prior to the murder.
Delivering judgment, 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,” said Sir Declan.
“The learned trial judge made no finding on this issue,” he said. Sir Declan, sitting with Lord Justices Higgins and Girvan, held the test applied by the trial judge required no knowledge of the attack until a rendezvous with the gunmen.
“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.”
