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R v Gnango (Respondent)

R v Gnango (Respondent)

Case [2011] UKSC 59 14 December 2011

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Michaelmas Term

[2011] UKSC 59

On appeal from: [2010] EWCA Crim 1691

JUDGMENT

R v Gnango (Respondent)

before

Lord Phillips, President

Lord Brown
Lord Judge
Lord Kerr
Lord Clarke
Lord Dyson
Lord Wilson

JUDGMENT GIVEN ON

14 December 2011

Heard on 11 and 12 July 2011

Appellant Respondent

Brian Altman QC Sallie Bennett-Jenkins QC

Mark Heywood QC	Nina Grahame
(Instructed by Crown	(Instructed by Mackesy’s
Prosecution Service)	Solicitors)

LORD PHILLIPS AND LORD JUDGE (WITH WHOM LORD WILSON

AGREES)

Introduction

1. Permission to appeal was granted in this case in order to enable this Court

to consider the following point of law, certified by the Court of Appeal as being of
general public importance:

“If (1) D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if (2) D1 mistakenly kills V in the course of the fight, in what circumstances, if any, is D2 guilty of the offence of murdering V?”

The facts of this case are unusual, but the importance of the point of law lies in the implications that it may have in respect of the scope of potential liability of those who permit themselves to become involved in public order offences.

2. No previous decision in this jurisdiction provides a clear indication of how the point of law should be resolved. The principles of law that fall to be applied are those of the common law, albeit that it will be necessary to consider a degree of statutory intervention. The particular areas of criminal law that will have to be considered are (i) joint enterprise; (ii) transferred malice; (iii) exemption from liability where a party to what would normally be a crime is a victim of it. No precedent indicates the result of the interaction of these three areas of law on the facts of this case. In resolving the point of law it will be appropriate to have regard to policy.

The facts

3. The following account of the facts is taken from the Agreed Statement of Facts and Issues. This reproduces almost verbatim the summary of the facts in the judgment of the Court of Appeal, delivered by Thomas LJ but to which all members of the court had contributed. The other members were Hooper, Hughes and Gross LJJ and Hedley J. Together the court brought to the problem very wide experience in the field of criminal law.

4. Shortly after 6 pm on Tuesday, 2 October 2007, a 26 year old Polish care worker, Magda Pniewska, was walking home from a nursing home through a car park for blocks of residential accommodation in New Cross, South London and up steps towards an open piece of ground. She was on the telephone to her sister when she was killed by a single shot to her head. That shot was fired in an exchange of fire between two gunmen one of whom was the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gnango (Respondent)

Details

AGLC: R v Gnango (Respondent) [2011] UKSC 59
Case: [2011] UKSC 59
Decision Date

CaseChat Overview and Summary

The Supreme Court was asked to consider whether an individual who voluntarily engages in a gunfight with another person, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, is guilty of murder if the other person mistakenly kills a third party during the course of the fight. The case involved two youths who engaged in a gunfight in a public car park, during which an innocent passerby was killed. The Court of Appeal had quashed the conviction of one of the youths on the basis that there had been no joint enterprise to cause harm to the other, but rather each had a separate, individual, and diametrically opposed enterprise. The Supreme Court allowed the appeal and restored the conviction, holding that both youths were guilty of murder as they had engaged in a joint enterprise to cause unlawful violence to each other, which carried a foreseeable risk that an innocent bystander would be harmed. The Court rejected the argument that the "victim rule" precluded the conviction of the respondent for aiding and abetting the murder of the passerby, as the rule did not apply to cases where the intended victim was not a member of the class of persons protected by the relevant legislation. The Court concluded that it was just and in accordance with the demands of justice that both youths be held liable for the death of the passerby.

Orders