2012 NICC 4

Neutral Citation No. [2012] NICC 4	Ref:	HAR8417

Judgment: approved by the Court for handing down	Delivered:	10/2/2012
(subject to editorial corrections)

IN THE CROWN COURT IN NORTHERN IRELAND

ANTRIM CROWN COURT

(SITTING AT BELFAST)

________

THE QUEEN

BRIAN PATRICK SHIVERS

________

SIR ANTHONY HART

[1] Brian Patrick Shivers has been convicted of two counts of murder, six counts of attempted murder, and one of possession of two firearms and ammunition with intent to endanger life arising out of the attack by two gunmen on several soldiers who emerged from the gates of Masserene camp on the night of 7 March 2009 to collect pizzas they had ordered. As I have already outlined the circumstances of the attack in my earlier judgment giving my reasons for convicting Shivers of these offences ([2012] NICC 1) it is unnecessary to set out the details of the attack again. It was a carefully planned attack carried out with the utmost determination, ruthlessness and ferocity, in which the gunmen were determined not only to kill the soldiers who were clearly distinguishable by their desert uniforms, but the civilians who were in the line of fire. Those involved in the attack were determined to kill as many soldiers and others as they could during the attack. This was demonstrated by the way in which the gunmen approached to within a few feet of some of their victims, and shot at those who lay helpless and defenceless on the ground, or in the case of Mr Watson and Sapper Fitzpatrick, trying to take shelter in one of the cars. This was an extremely grave crime, and there is no dispute that it was a terrorist attack. That was confirmed, if it needed to be, by the claim of responsibility on behalf of the Real IRA and the use of the two weapons involved in other terrorist attacks.

[2] Before turning to consider the principles that apply when the court has to pass sentences for those offences which do not automatically require a life sentence, and when considering the minimum term of imprisonment to impose upon Shivers in respect of the two counts of murder, it is appropriate that I should say something about the effect of these devastating events upon the families of the deceased and upon those who survived. I have been provided with Victim Impact Statements and medical reports relating to a number of those affected by these events. As Mr O’Connor QC on behalf of Shivers justly observed, no one could fail to be moved by these statements, and I do not intend to add to the pain and distress of those concerned by describing at length the effect of these events upon their lives and the lives of their families.

[3] In her statement Pamela Brankin, Sapper Mark Quinsey’s mother, describes how these events have affected her life. She said of her son:

“I was very proud of him. He was very popular and well loved by everyone.”

She also said:

“My life, Billy, Mark’s dad and Jamie, Mark’s sister’s life have been destroyed beyond belief. A mother thinks she will hold her children’s hand for the rest of her life. Now my hand is empty and lost …”

[4] In equally moving words Geraldine Ferguson, Sapper Patrick Azimkar’s mother, writes:

“There are no words to describe the impact of Patrick’s murder on us as a family. Words like devastated, despair, despondent, suffering, grief, agony, emptiness, terror all hint at it but nothing can properly tell the overwhelming awfulness of it.”

And

“We have all changed, all aged, our hearts and souls are no longer light but weighed down with sorrow and loss. We feel sort of empty inside and until recently felt life to be empty outside too. Everything seemed pointless and trivial, the colour of our lives faded.”

[5] Whilst these passages illustrate the grief and sense of loss felt by Pamela Brankin, Geraldine Ferguson and other members of their respective families, the effect on those who survived this terrible attack were equally marked. Christopher Fairclough was shot in the left side of his face, and although his injuries have resolved sufficiently to allow him to continue serving in the army, he has been left with a degree of permanent numbness of his lower left lip. He says:

“I was completely devastated by the death of my close friends, to be honest I don’t know if you ever get over this, you just learn to cope.”

[6] Marc Fitzpatrick now has left the army as a result of the very serious injuries he suffered, particularly to his left hand which was his dominant hand. He required three surgical procedures in Northern Ireland and two in Great Britain. He was also shot twice in his left shoulder. I have had the benefit of medical reports in relation to him, and it is sufficient to say that his comments in his Victim Impact Statement explain in an understated way the grave nature of his injuries when he said:

“This has had serious consequences for my quality of life and also for my usefulness in the working environment. I have restricted movement in this hand and this will be limited throughout my life. I have scars across the left-hand side of my chest caused by the bullets and then subsequent surgery. My lung was also punctured. Following all my surgery I have had numerous psychological difficulties”.

I do not consider it is necessary to expand on the details set out at length in medical reports from Dr Budd and David Warwick FRCS. Quite apart from the grave physical injuries which Mr Fitzpatrick has sustained, he also describes the significant psychological effects upon him of these events.

[7] Ryan Dodwell has also described how he has been affected. He was not injured, but it is not surprising and entirely understandable that he said:

“My life has never been the same since”.

He, like other victims, is trying to cope with the aftermath of these events by adopting a positive attitude, and he said:

“As I have already said I am trying to stay positive … and I am trying to put all this behind me”.

[8] Anthony Watson still has a bullet inside his shoulder, and says that serves as “a constant reminder of that night.” He also is trying to get on with his life and to put these events behind him, but his life so far has been marked in a significant way by these events.

[9] I do not have any up-to-date information in relation to the physical and psychological consequences of his being shot from Marcin Wietrzynski because he confirmed to the police that he did not wish to make a Victim Impact Statement. Nevertheless his injuries as described in my earlier judgment were considerable, and I have no doubt that he will always be affected to some degree by his experience that night, even if he makes a complete physical recovery.

[10] Richard Marshall was one of those who was fortunate not to be injured or killed by the hail of bullets that was directed at him and others by the attackers. He has said that he has left the army “for no other reason than the shooting that took place in Antrim”, and described in a brief email how he has really struggled in civilian life due to “flashbacks, nightmares and feeling extremely uncomfortable in open areas.”

[11] When Christopher Fairclough said “The people who carried out this attack have ruined many lives” he spoke not just for himself but for each of the victims of this attack.

[12] The only sentence which it is open to the court to impose in relation to the two counts of murder is one of life imprisonment, and I have already imposed that sentence. However, I am required by the provisions of the Life Sentences (Northern Ireland) Order 2001 to fix the minimum term that Shivers will serve before he can be considered for release on licence by the Parole Commissioners. Article 5(2) of the Order provides that the minimum term shall be such as the court:

“Considers appropriate to satisfy the requirements of retribution and deterrence having regard to the seriousness of the offence, or of the combination of the offence and one or more offences associated with it.”

The offences of attempted murder and possession of the firearms and ammunition used in the attack were clearly offences associated with the attack, and therefore have to be taken into account when determining the minimum term which Shivers should serve, although these must of course also be the subject of separate sentences in their own right. This is not to double count these offences when deciding the minimum term, but is to ensure that the minimum term of the life sentences properly reflect all of the relevant circumstances of the offence.

[13] In R v McCandless & Ors [2004] NICA 1 the Court of Appeal in Northern Ireland directed judges in this jurisdiction to apply the principles laid down by Lord Woolf CJ in the Practice Statement (Crime: Life Sentences) [2002] 3 All ER 412. This provides that when fixing the minimum term in murder cases there should be a normal starting point of 12 years, and a higher starting point of 15/16 years. It is conceded by Mr O’Connor that this is a case in which the higher starting point of 15/16 years is appropriate, and I consider that concession is correct. This is a case where the killings were politically motivated because this was clearly a terrorist offence; the victims were in a particularly vulnerable position because they were completely defenceless but clearly identified by their uniforms as soldiers or, in the case of the civilian delivery drivers, in very close physical proximity to the soldiers. In addition there were two murders, indeed it is only by chance that many more people were not killed because the attackers were clearly determined to kill as many people as they could.

[14] In addition there are a number of aggravating factors. The attack and the killings were clearly carefully planned over a substantial period of time. Two automatic rifles were used, and a very large number of shots fired. Finally, there was an attempt to destroy evidence of the crime when the unsuccessful attempt was made to set fire to the car that was used in the attack.

[15] As Carswell LCJ observed in McCandless the starting points are:

“As the term indicates, points at which the sentencer may start on his journey towards the goal of deciding upon a right and appropriate sentence for the instant case”.

And

“It is to be remembered that the figure of 15 or 16 years is only a starting point for the consideration of the court, and that having commenced from there its duty is to end up at a figure which properly represents the minimum period for which the perpetrator of the crime should be detained before his release can be considered. In assessing the heinousness of the factors which bring the case into the higher bracket the court is not double counting, merely determining the seriousness of the crime.”

[16] There is only one proper mitigating factor in this case and that is that Shivers was a person of good character, however this can count for little in the context of offences of this gravity.

[17] A further matter to which I should refer is that Shivers suffers from cystic fibrosis and has a limited life expectancy. In a medical report Professor Elborn has indicated that:

“Predicting survival is difficult but I would estimate that Brian has survival in the region of 4-5 years. This will fundamentally depend on the ability to continue his intensive treatment for his lung disease and in due course he may require assessment for lung transplantation which will present some further considerable challenges if he is determined at that time”.

[18] Professor Elborn explains in the same report that:

“The maintenance of good health in cystic fibrosis requires a very intensive daily treatment regime with physiotherapy, inhaled and oral medications, pancreatic enzyme replacement (Creon) all undertaken on a daily basis. Regular review is required and we see patients normally every two months. This increases when symptoms are deteriorating. Brian requires this high level of intensive medication and treatment and it is critically important that appropriate assessment and availability of therapy including the ability to regularly exercise for maintenance of his health [is provided]”.

[19] Mr O’Connor observed that Shivers’ limited life expectancy means:

“That effectively Mr Shivers will never see the outside of a prison, save perhaps for when he needs hospital treatment and for ultimately the possibility of compassionate leave in extreme circumstances”.

[20] If Shivers had been only convicted of offences which could be dealt with by way of a determinate, that is a fixed, period of imprisonment then it might be open to the court to mitigate to a limited degree the sentence which would otherwise be appropriate. However, that is not possible in a case of this nature where the only sentence is one of life imprisonment and the circumstances of the crime require the imposition of a very substantial minimum term of imprisonment to be served before the defendant can be considered for release as Mr O’Connor recognized when he said:

“However, we accept here that the disparity between any sentence which does reflect that limited life expectancy and the level of sentence which [the court] is bound to impose for these serious offences, is so wide that there is no allowance that [the court] can make which can have any meaning in relation to a life expectancy which is so limited. And this is, therefore, one of those cases where the court can genuinely say this is a matter for the Executive and the court’s duty remains unaffected.”

[21] These comments correctly reflect the law, but in view of the nature of Shivers’ condition and his limited life expectancy it is appropriate that I should explain in some detail why Mr O’Connor’s concession was correct. On many occasions it is regrettably the case that the courts have to sentence defendants suffering from serious ill-health, or who have a limited life expectancy, to substantial periods of imprisonment. In R v Bernard [1997] 1 Cr App R(S) 135 Rose LJ reviewed a number of relevant decisions in which this matter had been considered, and deduced a number of principles from those decisions:

“(i) A medical condition which may at some identified future date affect either life expectancy or the prison authority’s ability to treat a prisoner satisfactorily may call into operation the Home Secretary’s powers of release by reference to the Royal Prerogative of Mercy or otherwise but is not a reason for this court to interfere with an otherwise appropriate sentence;

(ii) the fact that an offender is HIV positive, or has a reduced life expectancy is not generally a reason which should affect sentence;

(iii) a serious medical condition, even when it is difficult to treat in prison, will not automatically entitle an offender to a lesser sentence than would otherwise be appropriate;

(iv) an offender’s serious medical condition may enable a court, as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate.”

Bernard was applied by the Court of Appeal in Northern Ireland in R v JR [2007] NICA 5, see Kerr LCJ at [28].

[22] At the conclusion of the trial Mr O’Connor drew my attention to R v Qazi & Hussain [2011] 2 Cr App R(S) 8 where the Court of Appeal had to consider the position of a defendant who was suffering from such severe ill health that there were difficulties in treating him in prison. Having reviewed the relevant authorities and the provisions of the European Convention on Human Rights, particularly Article 3, the prohibition of inhuman or degrading treatment or punishment, the Court of Appeal reached a number of conclusions which, when modified to take into account the somewhat different prison structure, and the structure of the Health Service, in Northern Ireland, can be expressed in the following terms:

(i) The court is entitled to take into account the fact that there are arrangements in prison to ensure that prisoners with severe medical conditions are treated in accordance with their Convention rights, and the duty of the Minister of Justice to release the prisoner if that is the only way a breach of Article 3 can be remedied.

(ii) On the basis of those arrangements and their continued operation and practice, a sentencing court need not inquire into the facilities in prison for the treatment of a medical condition. The court can be satisfied that there is a proper system where healthcare can be provided and that a sentence of imprisonment will not create a risk of a breach of Article 3.

(iii) It is only in circumstances where the very fact of imprisonment itself might expose the individual to a real risk of an Article 3 breach that the court will be called upon to inquire whether sentencing a person in custody will mean a breach of Article 3. It is an inquiry that can only arise where there is proper medical evidence before a court that any sentence of imprisonment ipso facto would cause a breach of Article 3. The court was doubtful if circumstances will ever arise in which such a submission could be made, but if they should ever arise, it would be an exceptionally rare event.

(iv) If any such circumstances should ever arise, then the sentencing court must be provided with appropriate information from a suitably qualified medical expert, and the court would consider in addition any medical evidence produced by the Minister of Justice.

(v) The relevance of a defendant’s medical condition relates solely to the assessment of the overall length of the sentence in accordance with the principles established in Bernard.

(vi) Any issues as to the breach of the duties of the Minister of Justice in relation to medical treatment and conditions in prison are matters for civil remedies and not for the sentencing judge.

[23] In his report of 19 January 2012 Professor Elborn observed:

“Should Brian have a custodial sentence, we would wish to undertake some intensive training with the medical staff in the appropriate institution to ensure that there is clear guidance and also to develop appropriate standard operating procedures that could be undertaken if Brian becomes unwell”.

[24] The concerns expressed by Professor Elborn in this report have been considered by the Prison Service in a letter before the court which the Prison Service wrote to Shivers’ solicitors on 31 January 2012. It is necessary to only quote two passages from that letter:

“It is fully accepted by the South Eastern Health & Social Care Trust (SET) and the NI Prison Service that Mr Shivers’ medical condition requires a fairly intensive treatment regime involving the administration of oral and inhaled agents in a timely manner together with appropriate nutritional support and regular airways clearance. SET is confident that Mr Shivers’ medical condition can be safely managed within Maghaberry Prison, but his needs will obviously be kept under regular review and his care plan adjusted where this is considered necessary.”

“Professor Elborn’s suggestion that the NI Cystic Fibrosis Centre provide intensive training to medical staff at Magheraberry Prison, and to help develop appropriate standard operating procedures should Mr Shivers become unwell, is very much welcomed by SET and NIPS. SET will contact Professor Elborn’s office in the next few days to discuss how this training might best be taken forward.”

[25] It is therefore clear that Shivers’ condition has been drawn to the attention of, and appropriately addressed by, the Northern Ireland Prison Service. I have dealt with these matters in some detail so that it can be clearly understood by the defendant and the public that the courts do not ignore the impact of such grave conditions as cystic fibrosis upon a defendant who must be sentenced to a long period in prison, but that the appropriate approach for the court to take is to proceed on the basis that such matters are irrelevant to sentencing, provided that the court is satisfied that there are available appropriate facilities within the prison to allow for such conditions to be properly dealt with by the provision of whatever medical care is necessary. Once the court is so satisfied then the responsibility for the provision of that medical care is the responsibility of the prison authorities. Should it be the case that Shivers’ condition deteriorates to such an extent that it may no longer be appropriate for him to be kept in prison that is a matter to be decided if and when it arises by the prison authorities in the first place, and ultimately by the Minister of Justice as the Minister responsible for the Prison Service and the exercise of the Royal Prerogative. I am satisfied that appropriate arrangements are being put in place to provide the necessary medical care which Shivers will require in the future.

[26] Those involved in this very grave crime must receive appropriate punishment. Shivers was a secondary party who set fire to the car afterwards, and it was not suggested to him in cross-examination that he had been in the car, or that he was one of the gunmen. As a secondary party he is liable to be punished as a principal offender. Whilst others who know what the principal offenders intend and provide assistance to them normally receive equivalent sentences to those who are directly responsible for the crime, nevertheless, depending upon the importance of the role of the secondary parties, some modest allowance may sometimes be made to recognise the fact that the role of a secondary party may be less prominent than that of the person who commits the crime itself. In the circumstances of this case any such allowance for Shivers must be modest indeed. Whilst he played a lesser role than the gunmen and driver of the attack car, by being at Ranaghan Road and setting fire to the car he played a prominent and essential role in this carefully planned and ruthlessly executed crime. Those who carry out such heinous crimes would not be able to do so without the assistance of others who play a vital part in helping the main participants to escape afterwards, and conceal or destroy evidence. That is what Shivers did by setting fire to the Cavalier used in the attack. Taking all of the relevant circumstances into account I fix the minimum period Shivers must serve before he can be considered for release at 25 years imprisonment on both murder counts.

[26] As the offences were committed after 15 May 2008 the dangerousness provisions of Chapter 3 of the Criminal Justice (Northern Ireland) Order 2008 apply to the remaining counts. Given the nature of these offences, and Shivers willingness to take part in terrorist offences of such gravity despite his ill health, I consider that the requirements of Article 13(2)(b) of the 2008 Order are satisfied, and I therefore sentence him to life imprisonment on each of the remaining counts, and fix the minimum term on each of those counts at ten years, being the equivalent to determinate sentences in each case of twenty years imprisonment. All the sentences will be concurrent, and the time spent in custody on remand will count towards the minimum term in each case

Judgment: approved by the Court for handing down