Duffy-Shivers trial ends in further controversy

A lawyer told Belfast Crown Court this week that the trial of Colin Duffy and Brian Shivers for the March 2009 Real IRA attack on a British Army base in Antrim has “miscarriage of justice all over it”.

Justice Anthony Hart, who is playing the role of both judge and jury under the North’s special Diplock legislation, has reserved judgment until the New Year.

The case came to a surprise conclusion this week when republican political activist Dominic McGlinchey was suddenly accused of involvement the attack. Mr McGlinchey -- who was questioned by the PSNI in regard to the attack two years ago, but was released -- swiftly refuted the accusation through his own legal team.

Soil and voice recording evidence against Mr Shivers and Mr Duffy was thrown out or dismissed in court. The case against the pair now rests heavily on a mathematical treatment of DNA test results recently devised by Pittsburgh-based scientist Dr Mark Perlman and presented at the court by the scientist himself.

Although there is little support in the international scientific community for Perlman’s method of treating individual genetic markers as statistically independent -- allowing the calculation of absurdly high probabilities of DNA matches from negligible DNA samples -- Justice Hart shocked legal observers by allowing Perlman’s testimony.

So there was little surprise when Hart again this week rejected an application by Colin Duffy’s lawyer to halt the trial because of the paucity of evidence against him.

In his response, Hart appeared to fully accept the validity of DNA samples which the PSNI claim to have found in a getaway car -- including a controversial DNA-smeared glove tip which mysteriously appeared in the vehicle while in PSNI custody.

“When all the circumstances are taken together, they show at the very least that Duffy was in the car in circumstances that could lead to the conclusion that he was one of those who travelled in the car before the attack,” the judge told the court.

“His use of gloves indicated that he wished to conceal that he had done so and that he was therefore a party to and involved in the perpetration of and the execution of the carefully planned and murderous attack in which this car was used.”

A prominent political activist, Mr Duffy has been a target of the British Crown forces in the North of Ireland for over two decades. He has been subjected to a number of false arrests as well as a miscarriage of justice, which saw a British conviction against him quashed.

Barry MacDonald QC, representing Duffy, said the judge should weigh up the “imponderable” factor of his own attitude towards his [republican] client.

“It would be to ignore the elephant in the room if I were not to draw attention to the dangers that can arise in circumstances such as this case where the court is invited, your lordship, to stretch and draw inferences to the extent that your lordship has been invited to do,” the lawyer said.

He said the DNA evidence could not prove when the glove tip allegedly containing Duffy’s material had been left in the car, and that prosecutors had attributed no role in the attack to his client.

Instead he said the judge was being asked to draw adverse inference from Duffy’s failure to testify -- a result of his refusal to recognise the Crown.

“It is a further indication that the route that the court is inviting your lordship to go down is replete with danger,” Mr MacDonald said.

“It has miscarriage of justice all over it and if your lordship draws the inference that the Crown is asking you to draw solely or mainly from the fact that Mr Duffy for whatever reason has declined to get into the box and justify himself there is a real risk that there will be a miscarriage of justice in this case.

“There is simply no evidence upon which this court could properly conclude that Mr Duffy was involved in any way in this attack and for that reason he should be acquitted.”

Crown prosecutor Terence Mooney then attempted to dismiss Shivers’s alibi evidence, and surprisingly claimed he had conspired with Dominic McGlinchey to carry out the attack.

He said Mr Shivers’s occasional attendance at meetings of the eirigi political party could be seen as evidence of his guilt.

“You were involved in this attack along with your friend Dominic McGlinchey,” Mooney declared.

“I suggest you have indicated your support by the attendance at meetings at an organisation that can only be described as at the dissident side of republicanism.

“You have manipulated your fiancee to try to concoct a story.”

The court was also told that Mr Shivers is dying from cystic fibrosis. He revealed that doctors had advised him in 2008 that he had five or six years to live because of the medical condition involving his lungs.

Mr Shivers said he had been to about three or four meetings of eirigi but had never joined the group as he had no desire to be involved in anything political.

He said he had never even met Mr Duffy prior to his arrest.

“I had no hand and no part [in the attack],” Shivers said. “I support Sinn Fein, I support the peace process.”

Urgent Appeal