A TERMINALLY-ILL man ordered to face a retrial after his convictions for murdering two British soldiers in Northern Ireland were quashed will remain in prison until the case is heard, judges have ruled.
A bail application for Brian Shivers was refused by the Court of Appeal in Belfast as it emerged that his lawyers are attempting to challenge today's decision to order the new trial in the UK's Supreme Court.
In refusing bail, the Appeal Court judges acknowledged the health issues facing the cystic fibrosis patient but said the risk of him offending was too high to release him from Maghaberry high security jail in Co Antrim.
The same court ruled yesterday that the convictions against the 47-year-old from Magherafelt, Co Londonderry, for the 2009 murders of sappers Mark Quinsey, 23, and Patrick Azimkar, 21, outside Massereene army barracks in Antrim were unsafe.
They said the move was in the public interest. The trial has been provisionally pencilled in for the start of March.
Shivers, dressed in a checked jacket and jeans, sat impassively in court throughout the legal proceedings at the High Court.
Delivering guilty verdicts last January, judge Mr Justice Anthony Hart, who has now retired, drew on DNA evidence to find that Shivers set light to the getaway car used in the gun attack.
Quashing those convictions, the Appeal Court noted that Mr Justice Hart had found Shivers guilty of murder as a secondary party, not murder as part of a joint enterprise, which had been the case put forward by the Crown.
On that basis, the judges found, setting fire to the car after the shootings was not enough find him guilty.
For a secondary party conviction, they stressed the importance of when the defendant lent assistance to the shooters and the need to prove if he knew about the plot before the crime was committed.
They said that Mr Justice Hart had made no finding as to when Shivers had that knowledge.
The English soldiers were gunned down as they collected pizza outside the gates of the barracks. They were just hours away from deploying to Afghanistan. The Real IRA claimed responsibility.
High-profile republican Colin Duffy, from Lurgan, Co Armagh, was acquitted of the murder charges at the same trial that saw Shivers convicted at Antrim Crown Court last year and ordered to serve at least 25 years.
His appeal against additional convictions on six counts of attempted murder and one of possession of two firearms and ammunition with intent to endanger life was also allowed. He will face another trial on all the original counts.
Applying for the retrial, Crown barrister Terence Mooney QC said the defendant still had a case to answer.
He told the three Appeal Court judges: "We submit there remains a prima facie cases against this defendant."
He added: "We submit it's in the interest of justice that you may order a new trial."
Patrick O'Connor QC, appearing for Shivers, said Mr Justice Hart had rejected a number of mainstays of the prosecution case in the original trial, among them whether the attack car was seen near his in the hours before the shootings and claims his DNA was on the inside of a phone left in the car.
The barrister said "everything was up for grabs" at a new trial and claimed another judge could come to different conclusions on those issues.
If the judge did so, he contended, it would represent an "abuse of process".
"There's a risk of damage to the administration of justice," he said.
The lawyer further argued that the Court of Appeal ruling on the convictions meant that Shivers should have actually been acquitted at the trial.
He said it would therefore contravene an important legal principle to make him face a new trial.
"In effect we have the principle of double jeopardy at play here," he said.
He claimed the prosecution could have charged Shivers with assisting an offender at the first trial but had "gambled" and pursued a murder charge.
Mr O'Connor acknowledged there was a powerful public interest in a case involving such an "appalling" crime but he insisted ordering a new trial would damage fundamental principles of law.
But the judges rejected the defence submission, insisting that their decision to quash the original convictions was founded on issues relating to judicial direction.
They said the judge in the new trial could address any concerns over abuse of process.
Sir Declan said: "It's appropriate that there should be a retrial in this case and we so order one."
In response, Mr O'Connor asked the judges to approve a certificate that would have enabled him to apply to test the retrial ruling in the Supreme Court.
He said he wanted the higher court to consider whether it was lawful for the Court of Appeal to order a retrial in circumstances where the original trial judge had made an error of law which, he claimed, resulted in the wrong verdict being delivered.
The judges, which have to certify the terms of the question before it progresses to the Supreme Court, said they were not prepared to accept it in that form.
They said they would re-examine Mr O'Connor's request at a later date if he wanted to reformulate his challenge.
Mr Mooney later opposed bail on the grounds that there was a risk of flight and a possibility Shivers would get involved in dissident republican activity outside.
"If he was released into the community there would be a real and significant risk of his support for, and participation in, further offending," he said.
Mr O'Connor insisted his client was unable to flee the jurisdiction because he was entirely dependent on medical care provided in Northern Ireland.
He claimed Shivers was the longest surviving cystic fibrosis patient in the region and said provision for those with the condition in the Republic of Ireland was not up to standard.
"If Mr Shivers took a rush of blood to the head and went across the Irish border to hide there, frankly he would probably die there fairly quickly," he said.
Mr O'Connor said a prison environment was not appropriate for Shivers' condition, further claiming that he had lost 10% of his body weight and 30% lung capacity since he was jailed a year ago.
He said the Court of Appeal decision to quash the convictions meant he had a clear criminal record.
While the Appeal Court judges accepted that the risk of flight was unlikely they refused bail on the grounds that Shivers might commit offences and therefore presented a risk to the public.
They noted that his original trial demonstrated his potential involvement in at least assisting the gang that carried out the shootings.