Queen v Brian Patrick Shivers
| Jurisdiction | Northern Ireland |
| Judge | Deeny J |
| Neutral Citation | [2013] NICC 10 |
| Court | Crown Court (Northern Ireland) |
| Date | 03 May 2013 |
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Neutral Citation No. [2013] NICC 10
Ref:
DEE8805
Judgment: approved by the Court for handing down
Delivered:
03/05/2013
(subject to editorial corrections)
IN THE CROWN COURT IN NORTHERN IRELAND
________
THE QUEEN
-v-
BRIAN PATRICK SHIVERS
________
DEENY J
[1] Brian Patrick Shivers appears before the court on an indictment of ten counts.
He is charged with the murder of Patrick Azimkar and Mark Quinsey on 7 March
2009. He is further charged on Counts 3-5 of the indictment with the attempted
murder on the same date of Mark Daniel Fitzpatrick, Christopher Fairclough and
Richard Marshall. All five of these men were serving soldiers in the 38th Royal
Engineers Regiment stationed at Masserene Barracks, Antrim. Mr Shivers is further
charged with the attempted murder on the same date of Anthony Watson and
Marcin Wietrzynski, who were pizza delivery drivers. He is charged with
possession of firearms on this occasion on the eighth count and attempted murder of
Ryan Dodwell, a Special Constable on duty at the barracks, on a ninth count. A tenth
count was added at the trial on the application of the prosecution. It is of assisting
offenders, contrary to s. 4(1) of the Criminal Law Act (N.I.) 1967.
[2] Mr Terence Mooney QC led Mrs Kate Mc Kay and Mr Philip Henry for the
prosecution. Mr Orlando Pownall Q.C. led Mr Sean Devine for the defence. I am
grateful to senior counsel for their able oral and written submissions and to counsel
generally and those instructing them for the expeditious conduct of the matter. A
number of matters, both significant and peripheral, were put forward on an agreed
basis. I have taken all submissions into account even if not expressly referred to in
this judgment.
[3] I propose to set out the circumstances that give rise to these counts on the
indictment. In doing so in the following paragraphs I will set matters out which are
very largely agreed, but if not agreed, which I find to this effect having been satisfied
of them beyond reasonable doubt by the prosecution evidence.
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[4] The 7 March 2009 was a Saturday. Most of the soldiers stationed at the
Massereene Barracks were expecting to commence a move to Afghanistan on that
day but their departure was deferred. In the evening at least two orders for pizzas
were made to a local restaurant. This had become a frequent practice at the barracks
over the preceding months. In describing what happened on that evening the court
has had the benefit not only of those eye witnesses who survived what transpired
but of CCTV images from security cameras operating at the entrance to the camp
and an analysis of the evidence from Mr Jonathan Greer, a senior forensic scientist
with the Forensic Science Laboratory of Northern Ireland.
[5] There are a set of CCTV images. The timing of these correlates with one
another but was in fact incorrect by about one hour and four minutes. At about 9.37
pm a Mazda 626 motor car, registration number GEZ 9790 pulled up at a layby in
front of some concrete dragon’s teeth immediately beside the entrance to the
barracks. The five soldiers named at paragraph 1 came out, correctly identifying the
vehicle as carrying a pizza delivery. However, it was not the delivery as they
expected it and some conversation ensued with Mr Marcin Wietrzynski the
deliveryman.
[6] Shortly afterwards a dark blue Volkswagen Bora, registration X904 UOK
pulled up with a second deliveryman, Mr Anthony Watson. The soldiers then
moved towards that car in search of the pizzas which had been ordered by
telephone.
[7] I find that a Vauxhall Cavalier registration number TDZ7309 had approached
from the Randalstown direction and done a U-turn just on the town centre side of
the barracks entrance at this time. It then pulled up slightly on the town side of the
two pizza delivery vehicles. Two gunmen got out of the four-door Vauxhall and
opened fire with automatic weapons on the soldiers and the deliverymen.
[8] The Crown here expressly concedes that it is not their case that Mr Shivers
was in the car. In these circumstances I need not go into undue detail about this
attack. Most evidence points to there being a driver and the two gunmen in the car
although one witness before me believed there was a fourth person. An accidentally
recorded phone message may indicate a fourth person also.
[9] The two gunmen fired on the seven men and the two civilian motor cars.
Two of the soldiers nearest to the adjoining sangar naturally ran towards it. The
sangar was fired on also. No doubt this was with the intention of deterring any
response and it had that effect. The special constable on duty was armed only with a
sidearm. There was no armed soldier on duty.
[10] It is not necessary for me to reach any conclusion on the unhappy state of
affairs where unarmed soldiers, as these were, were making their way in a semi-
regular and predictable basis to the exterior of the camp with only a special
constable with a sidearm as protection, particularly in the light of the level of threat
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existing in the province at that time. No doubt those responsible have drawn the
appropriate lessons from those circumstances and met their responsibilities towards
the victims.
[11] After some seconds of firing, and perhaps concluding that return fire would
not be forthcoming, the two gunmen closed in. One of them took the time to reload
his weapon having emptied the magazine. At point blank range they fired on the
victims of their attack. In particular they fired from above at the recumbent figures,
wounded or perhaps already dying, of Sappers Patrick Azimkar and Mark Quinsey.
They also inflicted multiple wounds on Sapper Fitzpatrick who attempted to shield
Mr Watson as they both sought a measure of refuge in the Bora car. They fired on
both the soldiers and the civilians, one of whom, Mr Wietrzynski, was seriously
injured.
[12] As is apparent from the CCTV the Vauxhall during the attack moved forward
to the actual entrance to the base which was only closed by a bar. This was
presumably to allow them sight of the guardhouse and to warn if soldiers were
coming. This did not transpire during the attack, which lasted less than 40 seconds
and the Vauxhall then reversed back and the two gunmen got into the car, the left
handed gunman in the front passenger seat and the right handed gunman, firing
almost to the last moment, into the rear seat. The Vauxhall then made off in the
direction of Randalstown.
[13] This attack was both ruthless and ferocious. Despite the efforts of those
concerned both Sappers Quinsey and Azimkar died that evening. Mr Watson and
Sapper Fairclough were injured although not as seriously as others. Some sixty three
rounds were fired at the unarmed men.
The Law
[14] Before moving on to the evidence that has particular relevance to the defendant
I propose to review the relevant law which I must apply. I am sitting in this matter
alone without a jury, pursuant to statute. In those circumstances I thought it right to
refresh my memory of the directions which would be given to a jury by a judge as to
the relevant legal principles. It is not necessary to set those out in full. Clearly the
onus to prove the case is on the prosecution and that onus can only be discharged by
satisfying the tribunal of fact that the accused is guilty beyond reasonable doubt of
each count on the indictment before a conviction can be safely entered.
[15] The case here is based on circumstantial evidence. Circumstantial evidence is
dealt with in Blackstone’s Criminal Practice, 2013, at F1.18 to F1.27. The learned
authors quote Lord Simon in DPP v Kilbourne [1973] 1 All ER 440 at 462; [1973] AC
729 at 758. The relevant passage reads:
“The Lord Justice-General (Lord Clyde) started his
judgment:
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