R v Gnango
| Jurisdiction | England & Wales |
| Judge | LORD BROWN,LORD DYSON,LORD CLARKE,LORD PHILLIPS,LORD KERR,LORD JUDGE,LORD WILSON |
| Judgment Date | 14 December 2011 |
| Neutral Citation | [2011] UKSC 59 |
| Date | 14 December 2011 |
| Court | Supreme Court |
[2011] UKSC 59
Lord Phillips, President
Lord Brown
Lord Judge
Lord Kerr
Lord Clarke
Lord Dyson
Lord Wilson
Appellant
Brian Altman QC
Mark Heywood QC
(Instructed by Crown Prosecution Service)
Respondent
Sallie Bennett-Jenkins QC
Nina Grahame
(Instructed by Mackesy's Solicitors)
Heard on 11 and 12 July 2011
LORD PHILLIPS AND LORD JUDGE (WITH WHOM LORD WILSON AGREES)
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.
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 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.
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 respondent.
The respondent, who was born on 26 May 1990, and was 17 years of age at the time, had a dispute with another youth ('TC'). At about 5 p.m. on 2 October 2007 he went with a friend, Nana Acheampong, by car to the home of his ex-girlfriend, Roxanne Landell. Shortly thereafter Nana Acheampong and the respondent drove round to a car park elsewhere on the same estate from where the respondent went on foot to an adjacent car park. He had armed himself with a gun which was silver in colour and he had several rounds of live ammunition. Nana Acheampong had remained in the car.
A red Volkswagen Polo was already in the car park. There were four occupants of the car, one of whom was pregnant. The respondent spoke to the occupants of the Polo, as they were about to leave. According to two of them he told them that "he had come to meet someone to handle some business". He asked if they had seen a man in a red bandana, saying that that man owed him some money.
Very shortly thereafter the occupants of the red Polo saw someone come down the steps towards the car park. His face was covered with a red bandana. At the trial, he was referred to as "Bandana Man" and I shall so describe him in this judgment. He pulled out a gun, black in colour, and started shooting at the respondent. The respondent crouched down behind the red Polo, pulled out his gun and returned the fire. The respondent fired two or three shots over the roof of the car. He then went to the front of the car and started shooting over the bonnet whilst the other man shot back. The clear evidence of those in the red Polo was that the respondent was shooting at Bandana Man.
It was in that crossfire between the respondent and Bandana Man that Magda Pniewska was killed. Scientific examination showed that the single bullet to the deceased's head did not come from the respondent's gun; it had come from the gun held by Bandana Man.
Both the respondent and Bandana Man fled from the scene. TC, who was believed to be Bandana Man was arrested, but never charged. The respondent was arrested four days later.
The car park, in which the gun fight took place, was surrounded by closely built, modern residential blocks in multiple occupation. All had windows facing the parking area.
At this point we propose to summarise quite shortly the areas of common law in play. It will be necessary to revert to these in greater detail when we come to consider their application to the facts of this case.
Section 8 of the Accessories and Abettors Act 1861, as amended by the Criminal Law Act 1977, provides:
"Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender."
This section does not specify what is encompassed by the words "aid, abet, counsel, or procure". That question is determined by the common law. There is no need in this case to attempt a comprehensive definition. In particular we can ignore any complications that may arise in relation to the accessory before or after the fact, who is not present when the criminal act is committed. Having regard to the facts of this case we can start with this simple proposition. Where two persons, D1 and D2 agree to the commission of an indictable offence, where both are present at the place where the criminal act is to be performed and where one of them, D1, commits that act, both will be jointly liable for the crime. The act will have taken place pursuant to their joint criminal purpose and D2 will be equally guilty with D1, having aided, abetted, counselled or procured D1 to commit the crime.
The law becomes more complicated where, in the course of committing, or attempting to commit the criminal act which is their common purpose, D1 commits a further criminal act which goes beyond that purpose. The example that is usually given is the following. D1 and D2 break into a house with the common intention of committing a burglary. They are surprised by the householder, whereupon D1 hits him on the head with a jemmy and kills him. D2 had had no intention, or wish, that either of them should inflict injury in the course of the burglary but had foreseen the possibility that D1 might inflict serious injury in the course of it. The situation exemplified by these facts has been repeatedlyconsidered in different factual contexts by the Court of Appeal and the House of Lords. These authorities were recently analysed by Hughes LJ when giving the judgment of the Court of Appeal in R v A [2010] EWCA Crim 1622; [2011] QB 841. His conclusion, which we would endorse, appears in the following passage from para 27 of his judgment:
"…the liability of D2 …rests, as all these citations show, on his having continued in the common venture of crime A when he realises (even if he does not desire) that crime B may be committed in the course of it. Where crime B is murder, that means that he can properly be held guilty if he foresees that D1 will cause death by acting with murderous intent (viz either intent to kill or intent to do GBH). He has associated himself with a foreseen murder."
Professor Sir John Smith coined the phrase "parasitic accessory liability" to describe this form of liability arising out of participation in a joint criminal enterprise. While this is not the most elegant phraseology we propose to adopt it in this judgment by way of convenient shorthand.
The principles that we are about to describe have long been recognised by commentators on the common law of crime, but there is a dearth of actual cases to illustrate them. Where a defendant intends to kill or cause serious injury to one victim, V1, but accidentally kills another, V2, he will be guilty of the murder of V2. The basis of this liability is customarily described as "transferred malice", although a better description might be "transferred mens rea"– see Archbold 2011 ed at 17–24; Blackstone's Criminal Practice 2011 ate A2.13. The doctrine applies to secondary parties as it does to principal offenders. Thus if D2 attempts to aid, abet, counsel or procure D1 to murder V1 but D1, intending to kill V1, accidentally kills V2 instead, D2 will be guilty of the murder of V2 – see Smith & Hogan, Criminal Law,12 th ed (2008) at p 205.
In an article on "Victims and other exempt parties in crime" in (1990) 10 Legal Studies (1990), at p 245 Professor Glanville Williams identified a principle that he described as the "victim rule." He defined this as follows:
"…where the courts perceive that the legislation is designed for the protection of a class of persons. Such people should not be convicted as accessories to an offence committed in respect of them when they co-operate in it. Nor should they be convicted as conspirators."
Professor Glanville...
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