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Lugh Ildánach

Brian Shivers Conviction Quashed

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http://www.bbc.co.uk...reland-21029185

 

Brian Shivers has Massereene convictions quashed

 

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Brian Shivers was convicted of killing Sappers Azimkar and Quinsey

 

 

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A man jailed for murdering two soldiers at Massereene Army base in Antrim has had his convictions quashed.

 

Brian Shivers, 47, from Magherafelt, challenged his convictions for the murders of Sappers Mark Quinsey, 23, and 21-year-old Patrick Azimkar in March 2009.

 

The victims were shot by the Real IRA as they collected pizza.

 

On Tuesday, the Court of Appeal ruled the verdict was unsafe.

 

The court said that no finding was made on when Shivers allegedly became aware of the murder plot.

 

Shivers will now remain in custody until the Public Prosecution Service decides whether to seek a retrial.

 

Last February, Shivers was ordered to serve a minimum 25 years in prison for his part in the killings.

 

At that time, 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, County Armagh, was acquitted of all charges, including the two murders.

 

Shivers, who suffers from cystic fibrosis, 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 he convicted of murder because there was no actus reus, or criminal act, prior to the murder.

 

Patrick Azimkar and Mark Quinsey were murdered in March 2009

 

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," Sir Declan Morgan pointed out.

"The learned trial judge made no finding on this issue."

 

Sir Declan, sitting with Lord Justices Higgins and Girvan, held that the test applied by the trial judge required no knowledge of the attack until a rendezvous with the gunmen.

 

On that basis he stated: "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."

 

Counsel for the Public Prosecution Service is expected to confirm on Wednesday whether it is seeking fresh criminal proceedings.

 

Shivers, who maintained his innocence, appeared by prison video link to hear the outcome of his appeal.

 

His lawyer, Niall Murphy, said he was relieved by the verdict but expressed concerns about his health.

 

Mr Murphy said: "This is an example of the justice system working, however, we are gravely concerned at our client's ongoing acute medical condition.

 

"He has been admitted to hospital for 56 days across three separate admissions since the hearing of his appeal in May and he is routinely refused access to his medication.

 

"Mr Shivers has been through a terrible ordeal whereby he has been repeatedly assaulted /abused whilst in prison and in hospital where he is continuously under armed guard."

 

He added: "Mr Shivers looks forward to the end of this ordeal and hopes that this judgement is the first step towards that."

An Army spokesman said: "Our thoughts remain with the families of Sappers Patrick Azimkar and Mark Quinsey at this extremely difficult time."

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So basically, the court sentenced him to at least 25 years without even being satisfied that he actually did anything. How many years of his life robbed from him? Hopefully he is released.

 

It would be a travesty to re-try him, although if they do, he should get bail, as he was already on bail when convicted.

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Its great news, and really shows up the bankrupt effort of the Brits to use pseudo-scientific "evidence" to actually intern people. I hope this outcome will have some influence on the case of the Craigavon Two - a case where the lack of evidence is even more stark.

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If the Craigavon Two convictions are overturned, like they should be, then it will be a huge indictment of the British justice system. I think that would leave the Brits with zero convicctions from contested trials over the past number of years. It would also be a huge indictment of the internment by remand system that sees dozens of young irish men each year sent to Maghaberry with no prospect of any conviction. I wonder if anyone is actually collating these figures?

 

That Brian's solicitor can refer to this as a case where the justice system has worked is rather bizarre.

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Great news there. British justice-internment and fit ups. Like Lugh said, the court was happy to sentance him to 25 years on next to no evidence. Hopefully he'll be home soon and they wont drag it out hold him while they set a retrial or anything.

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Upon closer reading of the case, it seems that what the Court of Appeal is saying is that they don't have a problem with the allegation that he burned the car, but that burning the car after the event is not sufficient to convict him of murder. There is no "accessory after the fact" legal principle in British law, they have to be satisfied that he did something prior to the killing to be convicted of murder.

 

Burning the car could however constitute any number of other potential charges, eg. arson or criminal damange, even perverting the course of justice. There are also other charges under the Terrorism Act that they could throw at him. They would have to balance any possible sentence that he would likely receive for that against the time he has already served on remand. Given the time-frame though, and the fact that the prosecution had the opportunity to bring such charges at an earlier date and failed to do so, and that he has already served a considerable time on remand, I'd say that the likely result will be that he will not be re-tried. Fingers crossed!

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There is also a risk that at any re-trial, that the judge will simply adopt the previous judgment on all matters and insert something along the lines of him drawing an adverse inference from Brian's failure to take the stand, and that he believes his failure to do so indicates that he did have the prior knowledge required to convict him of murder.

 

I fear this may only be a short reprieve. Now, I hope I'm wrong!

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Guest IsMise

Lugh....stop talking!!!!!! You're worse than "if you build it they will come here" lol

 

I do however fear they will throw anything they can at this to ensure the perception is they have their man...even though more than once now its shown they don't....this whole legal system up there is crazy craxy how it can be worked against him at their bidding...aarrrgh

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Lugh....stop talking!!!!!! You're worse than "if you build it they will come here" lol

 

I do however fear they will throw anything they can at this to ensure the perception is they have their man...even though more than once now its shown they don't....this whole legal system up there is crazy craxy how it can be worked against him at their bidding...aarrrgh

 

The legal system in the 26 is no better. In many cases its worse, although at least there's a better chance of getting bail.

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Guest IsMise

Yes, I did mean the legal system in general is screwed up, not specifically up there, it just seems to me this case beggars all belief.

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