Supreme Court

Published December 15, 2011

Regina v Gnango

Before Lord Phillips of Worth Matravers, Lord Brown of Eaton-under-Heywood, Lord Judge, Lord Chief Justice, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony, Lord Dyson and Lord Wilson

Judgment December 14, 2011

When two gunmen agreed to shoot at each other in a public place and one of them accidentally killed a passerby, they were both guilty of murder by a combination of common law principles relating to aiding and abetting and the common law doctrine of transferred malice.

The Supreme Court so held (Lord Kerr dissenting) allowing an appeal by the Crown from a decision of the Court of Appeal (Lord Justice Thomas, Lord Justice Hooper, Lord Justice Hughes, Lord Justice Gross and Mr Justice Hedley) (The Times August 31, 2010; [2011]1 WLR 1414) allowing the appeal of the defendant, Armel Gnango, from his conviction for murder on May 22, 2008, before Mr Justice Cooke and a jury at the Central Criminal Court.

Mr Brian Altman, QC and Mr Mark Heywood, QC for the Crown; Ms Sallie Bennett-Jenkins, QC and Ms Nina Grahamefor the defendant.

LORD PHILLIPS and LORD JUDGE (with whom Lord Wilson agreed) said that the victim had been walking home through a car park when she was killed by a single shot to her head. The shot had been fired in an exchange of fire between the defendant and another youth whose face had been masked. Forensic examination showed that the bullet which killed the victim had come from the gun of the other youth. Both the defendant and the other youth fled the scene. The other youth had never been charged.

The judge directed the jury on parasitic accessory liability that if they were sure that the defendant and the other youth were in a joint enterprise to cause an affray, to use unlawful violence against each other by having a gun fight and firing at each other, whether that joint enterprise was pre-planned or arose on the spur of the moment, and in the course of that joint enterprise the victim had been murdered on the basis of transferred malice, and the defendant realised that in the course of their joint enterprise gunfight the other youth might kill with the requisite intention for murder, then the defendant would also be guilty of murder.

In the Court of Appeal the defendant argued that there had been no joint enterprise and the defendant and the other youth had each been engaged on a separate, individual and diametrically opposed enterprise as each had been out to harm the other and all that the defendant could have foreseen was that the other youth would try to kill him.

The Court of Appeal accepted that argument and said that on the facts there might have been a common purpose to shoot and be shot at, as in a duel, but the jury had never been asked to confront the question whether the shared common purpose had been not only to shoot but to be shot at.

In the Supreme Court the Crown submitted that the defendant?s conviction could be justified on the basis that he aided and abetted the commission of the murder by actively encouraging the other youth to shoot at him.

Their Lordships said that there was no statutory or common law bar to prosecuting the defendant for being party to a crime in respect of which he had been the intended victim. Nor was there any reason why the court should consider extending the common law so as to protect from conviction any defendant who had been, or had been intended to be, harmed by the crime that he had committed or attempted to commit.

If the defendant had aided, abetted, counselled or procured the other youth to shoot at him, he was guilty of aiding and abetting the attempted murder of himself. Had he been killed by the other youth he would have been party to his own murder. Although he had not intended that the other youth should succeed in hitting him, complicity in his attempt to do so would have rendered him party to the successful achievement of that attempt.

When the other youth accidentally shot the victim, he was, under the doctrine of transferred malice, liable for her murder. The defendant, if he had aided, abetted, counselled or procured the attempt was, by the same doctrine, party to the murder that resulted. If it followed that, having regard to the terms of the judge?s directions, the jury must have been satisfied that the defendant had aided, abetted, counselled or procured the other youth to shoot at him with murderous intent, his conviction could stand. If not the Court of Appeal had correctly quashed it.

Contrary to the Court of Appeal?s finding, the judge?s direction required the jury to consider whether they were satisfied that the defendant and the other youth had a common plan or agreement to shoot at each other and to be shot at. If they had been so satisfied, and their verdict indicated that they had been, that was a proper basis for finding that the defendant was guilty of murder.

The guilty verdict involved a combination of the common law principles relating to aiding and abetting and the doctrine of transferred malice. Their Lordships had considered whether to hold the defendant guilty of murder would be so far at odds with what the public would be likely to consider the requirements of justice as to call for a reappraisal of the application of the doctrine in the present case. Their conclusion was to the contrary. In the circumstances of the case it seemed to accord with the demands of justice rather than be in conflict with them that the two gunmen should each be liable for the victim?s murder.

Their Lordships had considered the judgments of Lord Brown and Lord Clarke who each considered that the defendant was liable as a principal to the agreed joint activity of shooting with intent to kill or cause serious injury, rather than as an accessory to the act of firing the shot. That was not a difference of substance. It might well be that in terms of the common law the other youth had been a principal in the first degree and the defendant had been a principal in the second degree. Whether the defendant was correctly described as a principal or an accessory was irrelevant to his guilt.

The reality was that whether an offence had been committed as a principal or as an accessory, the offence was the same offence and the defendant was guilty of it. There might be situations in which it would be important to distinguish between the principal and the accessory, but the present case was not such a case.

On the jury?s verdict both men agreed to the joint enterprise of having a shoot out. Whether, on strict analysis, that made the defendant guilty as a principal to the other youth?s actus reus of firing the fatal shot, or guilty as one who had ?aided, abetted, counselled or procured? his firing of that shot created no practical difficulty on the facts and did not affect the result.

Lord Brown, Lord Clarke and Lord Dyson delivered concurring judgments. Lord Kerr delivered a dissenting judgment.

Solicitors: Crown Prosecution Service; Mackesy?s.

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