Friday 10 February 2012
Summary of Judgment
Sir Anthony Hart, sitting today in Antrim Crown Court sitting at Belfast, set the minimum term of imprisonment to be served by Brian Shivers for the murders in 2009 of Sappers Mark Quinsey and Patrick Azimkar. He also sentenced him to life imprisonment on each of the other charges of attempted murder and possession of firearms and ammunition with intent to endanger life.
Before considering the sentences to be imposed, the judge spoke of the effect of the attack on the families of the deceased and on those who survived. He quoted from Victim Impact Statements and said that when one commented that “the people who carried out this attack have ruined many lives” he spoke not just for himself but for each of the victims.
Turning to the tariff to be fixed, the judge said that 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 had to be taken into account when determining the minimum term that Shivers should serve, although these offences must also be the subject of separate sentences in their own right. The judge said this is not to double count these offences, but to ensure that the minimum term of the life sentences properly reflect all of the relevant circumstances of the offence.
The judge said that this was a case where the higher starting point of 15/16 years was appropriate:
“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 proximity to the solders. 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.”
The judge said there were a number of other aggravating factors: the attack and the killings were clearly planned over a substantial period of time; two automatic rifles were used and a very large number of shots were fired; and there was an attempt to destroy evidence of the crime by trying to set fire to the car that was used in the attack. He commented there was only one proper mitigating factor and that was that Shivers was a person of good character but said that this could count for little in the context of offences of this gravity.
The judge then turned to the matter of Shivers’ limited life expectancy due to the fact that he suffers from cystic fibrosis. A medical report presented to the court estimated that he has a life expectancy of 4-5 years but that this would depend on the ability to continue his intensive treatment.
The judge referred to case law which sets out the principles to be followed where the court has to sentence defendants suffering from serious ill-health or who have limited life expectancy, to substantial periods of imprisonment. He noted that the Prison Service and the South Eastern Health and Social Care Trust indicated to the court that they are confident that Shivers’ condition can be safely managed within Maghaberry Prison and have welcomed the suggestion that intensive training should be provided to medical staff.
The judge commented that Shivers and the public should understand 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:
“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.”
The judge said he was satisfied that appropriate arrangements are being put in place to provide the necessary medical care which Shivers will require in the future.
The judge stated that Shivers was a secondary party to the attack who set fire to the car afterwards but that meant that he was liable to be punished as a principal offender. He said that in some cases the court can make some modest allowance 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. He added, however:
“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 … 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.”
Taking all of the relevant circumstances into account the judge fixed the minimum period of imprisonment that Shivers must serve before he can be considered for release at 25 years imprisonment on both murder counts.
The judge also sentenced Shivers to life imprisonment on each of the remaining counts and fixed the minimum term on each of those counts as ten years. This is the equivalent to determinate sentences in each case of twenty years imprisonment. All the sentences are to be concurrent.
1. This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).
2. The minimum term is the term that an offender must serve before becoming eligible to have his or her case referred to the Parole Commission for them to consider whether, and if so when, he or she can be released on licence. This is the period that 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. Unlike determinate sentences, the minimum term does not attract remission. If the offender is released on licence they will, for the remainder of their life, be liable to be recalled to prison if at any time they do not comply with the terms of that licence. The guidance is set out in the case of R v McCandless & Others [2004] NI 269.
3. A Practice Statement, [2002] 3 All ER 417, sets out the approach to be adopted by the court when fixing the minimum term to be served before a person convicted of murder can be considered for release by the Parole Commissioners. It also sets out two starting points. The lower point is 12 years, and the higher starting point is 15/16 years imprisonment. The minimum term is the period that the court considers appropriate to satisfy the requirements of retribution and deterrence having regard to the seriousness of the offence. This sentencing exercise involves the judge determining the appropriate starting point in accordance with sentencing guidance and then varying the starting point upwards or downwards to take account of aggravating or mitigating factors which relate to either the offence or the offender in the particular case.
ENDS
If you have any further enquiries about this or other court related matters please contact:
Alison Houston
Judicial Communications Officer
Lord Chief Justice’s Office
Royal Courts of Justice
Chichester Street
BELFAST
BT1 3JF
Telephone: 028 9072 5921
Fax: 028 9023 6838
E-mail: Alison.Houston@courtsni.gov.uk