The Court of Appeal ruled today that the guilty verdict returned against Brian Shivers was unsafe because no finding was made on when he allegedly became aware of the so-called murder plot.
Two British soldiers died at the gates of Massereene Barracks in March 2009.
The 47-year-old, from Magherafelt, County Derry, was arrested alongside prominent Lurgan republican Colin Duffy, amid an intense police effort to bring charges in the case. It became one of the most highly controversial cases of recent years.
After being held unjustly for almost three years, Mr Duffy was ultimately freed early last year. But there was considerable shock at the murder conviction of Brian Shivers, a man with advanced cystic fibrosis. While Mr Shivers was never linked with the actual killings, DNA evidence found on a matchstick was used to claim a link to the getaway car.
The judge at the time found he had ‘common cause’ with those who carried out the attack. Shivers, who has only a few years to live, was ordered to serve a minimum 25 years in prison.
Shivers’ lawyers have argued that it was legally impossible for him to be convicted of murder because there was no ‘actus reus’, or guilty act, prior to the murder.
Delivering judgment this afternoon, Chief Justice 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 pointed out.
“The learned trial judge made no finding on this issue.”
Morgan, sitting with Justices Higgins and Girvan, held that the test applied by the trial judge required no prior knowledge of the attack.
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.”
Shivers, who maintains his innocence, appeared by prison video link to hear the outcome of his appeal. He remains in jail at the moment while prosecutors decide his fate.
His lawyer said he was relieved by the verdict but expressed concerns about his health.
Niall Murphy, of Kevin R Winters and Co, said: “This is 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.”