Freedom refused even as guilty verdict overturned

A terminally ill Derry man has experienced elation and heartbreak this week after an appeal court in Belfast quashed his controversial conviction for the 2009 Real IRA attack on the Massereene British Army base -- only to order a retrial, while refusing him bail.

The Appeal Court overturned Brian Shivers’ guilty verdict, but ordered the Magherafelt man to face a second juryless trial on the same charges.

Mr Shivers, who suffers from acute cystic fibrosis, was expected to be released from Maghaberry prison after his conviction was found to be ‘unsafe’. On Tuesday, Appeal Court judges found that original Diplock court judge -- sitting without a jury under special anti-republican legislation -- had wrongly convicted him last year of the deaths of two British soldiers, without any evidence of any kind that Mr Shivers had even known of the plan to attack the base.

But on Wednesday, Mr Shivers -- although innocent in the eyes of the law -- found himself back at Maghaberry, and facing a very uncertain future.

Last year, he was wrongly handed down two murder convictions after the Diplock judge declared him to have been a secondary party in the Real IRA attack, by allegedly setting fire to the getaway car.

He was ordered to serve a minimum 25 years in prison, while his co-accused Colin Duffy, a high-profile victim of a previous miscarriage of justice in the North, was acquitted.

A fragment of a matchstick and a little-known DNA statistical calculation allegedly connected Mr Shivers to the a partially burned-out vehicle, the so-called getaway car. During the trial, it was accepted by the prosecution that he could not have carried out the attack due to his crippling physical illness. However, they claimed that he must have been involved in the aftermath.

Defence lawyers successfully argued before the Appeal Court that Mr Shivers should never have been convicted of murder as there was no evidence that the Derry man was ever aware of the plot before it took place. They pointed to the well-known legal principle of the need to show an ‘actus reus’, or guilty act, prior to an attack.

The case and other recent miscarriage of justice cases in the North have been linked to the attempts to deliver a ‘crackdown’ against republican armed groups. Victims of the Birmingham Six, Guildford Four, and the Maguire Seven cases have compared the current judicial situation in the North with that of Britain in the seventies.

DOUBLE JEOPARDY

Defence barrister Patrick O’Connor argued to the Appeal Court that a retrial risked bringing the administration of justice into disrepute. He pointed out that key elements of the prosecution case had already been rejected first time around.

Mr O’Connor said a retrial would “offend against two extremely fundamental principles of law: damage to the integrity of the administration of justice, and double jeopardy.”

The defence barrister questioned whether it was lawful to order a retrial, having quashed the conviction for an error of law. He said the only lawful verdict on the findings of fact, was acquittal.

But Chief Justice Declan Morgan, sitting with Justices Higgins and Girvan, claimed that the double jeopardy issue ‘did not feature’ in a case involving a misdirection.

The defence team said they were gravely concerned at their client’s acute medical condition. Mr Shivers has a life expectancy measured in months, and may not live long enough to see justice.

Arguing that Mr Shivers be released on bail, as he was for the first trial, Mr O’Connor said that his client was a man with a clear record who “hadn’t even been on the radar” before his arrest.

He said that his client was the longest surviving cystic fibrosis sufferer in the North of Ireland, but that he was “anchored” to medical treatment. Mr Shivers has spent a quarter of the last six months in hospital, has lost 10% of his body weight and 30% of his lung capacity.

“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,” Kevin Winters said on Tuesday.

“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.”

Despite the arguments, Justice Morgan claimed that he was a “risk to the public” which justified him being kept in prison.

The defence team said they will appeal the retrial decision before the Supreme Court in London.

Urgent Appeal