In the case preview for R v Gnango, it was suggested that the question facing the Supreme Court read like a particularly complex examination problem. The final judgment is likely to provide future examination questions along the lines of, “To what extent does the judgment is R v Gnango clarify the law of joint enterprise and parasitic accessory liability?” The concise answer, unfortunately, is not much. Several commentators have suggested that the lack of clarity is a result of the judgment being driven by legal policy rather the legal principle, seeking to find a way to uphold the conviction rather than testing if the conviction could be upheld on current joint enterprise principles. A harsh assessment, but one that seems plausible in light of the conflicting reasons given for upholding the original murder conviction in the judgment itself, and the fact that Lord Kerr’s dissenting judgment is the clearest and most consistent with the recognised principles of joint enterprise and the original jury direction.
On October 2 2007 a 26 year old woman, Magda Pniewska, was returning home through a car park in New Cross. She was killed during an exchange of fire between two gunmen, ‘B’ (also known as Bandana Man), and Mr Gnango. Magda was killed by a bullet from Bandana Man’s gun, but he was never apprehended. Gnango was charged and convicted of murder on the grounds of joint enterprise. As mentioned in the case preview, the Court of Appeal carefully examined the various types of joint enterprise, dividing it into three broad categories:
a. Where two or more people join in committing a single crime, in circumstances where they are in effect joint principals, for example where three robbers confront a security man making a delivery.
b. Where D2 aids and abets D1 to commit a single crime, for example where D2 provides D1 with a weapon to commit a robbery.
c. Where D1 and D2 participate together in one crime and in the course of it D1 commits a second crime which D2 has foreseen he might commit.
In the Court of Appeal the Crown did not attempt to argue that Gnango was liable under the first two types of joint enterprise. In the original trial an attempt had been made to argue that Gnango was liable under the first type on the grounds that Gnango and Bandana Man had been engaged in a joint enterprise to shoot each other and be shot at. In the appeal this argument was expressly disavowed by the Crown on the grounds that:
“The difficulty on the facts of the current case is that the appellant himself was the intended victim of the other man. The appellant neither intended nor consented to bodily injury to himself at the hand of the other man nor could he truly be said to have been party to a joint enterprise to kill or cause harm to himself.” Para 33
The Crown’s case thus rested wholly on the third type, a joint enterprise to commit the crime of exchanging fire in a public place (affray), with the foresight that murder might be committed when they shot at each other. The Court of Appeal found that it could not be argued that Gnango and Bandana Man had a common enterprise to commit an affray, as it could not be said that they shared a common purpose that each would use unlawful violence against each other.
The Supreme Court also carried out a detailed examination of the various types of joint enterprise, and in the leading judgment (given by Lord Phillips and Lord Judge together, with Lord Wilson agreeing), agreed with the Court of Appeal that there could be no conviction on the basis of a joint enterprise to commit affray. But hereafter the judgments of the Court of Appeal and Supreme Court parted. The leading judgment turned on the argument originally disavowed by the Crown in the Court of Appeal; that Gnango was liable on the grounds that the Gnango had aided and abetted Bandana Man in his own attempted murder by agreeing to the shoot-out. This was termed the “direct route” to liability by the Supreme Court:
“Why was the Crown so keen to establish liability under the doctrine of parasitic accessory liability? The answer is, we believe, that the Crown believed that this route would enable it to by-pass what was perceived to be a barrier to the direct route to the respondent’s liability for murder. The direct route was as follows:
i) Bandana Man attempted to kill the respondent;
ii) By agreeing to the shoot-out, the respondent aided and abetted Bandana Man in this attempted murder;
iii) Bandana Man accidentally killed Miss Pniewska instead of the respondent. Under the doctrine of transferred malice he was guilty of her murder.
iv) The doctrine of transferred malice applied equally to the respondent as aider and abetter of Bandana Man’s attempted murder. He also was guilty of Miss Pniewska’s murder.” Para 44
The Supreme Court resurrected this argument and found that although Gnango had been the intended victim of Bandana Man, this did not prevent him from aiding and abetting Bandana Man in his own attempted murder by agreeing to the shoot-out. The Court held that the ‘victim rule’, which prevents defendants from being party to a crime in respect of which they are the intended victim, did not apply in this case:
“We can see no reason why this court should consider extending the common law so as to protect from conviction any defendant who is, or is intended to be, harmed by the crime that he commits, or attempts to commit. Such an extension would defeat the intention of Parliament in circumscribing the victim rule in section 51 of the 2007 Act. In R v Brown (Anthony)  1 AC 212 sadomasochists were held to have been rightly convicted of causing injury to others who willingly consented to the injuries that they received. There would have been no bar to conviction of the latter of having aided and abetted the infliction of those injuries upon themselves.” Para 55.
This effectively means that a participant in a gunfight – if they survived – could be convicted for their own attempted murder. At best, this seems somewhat counterintuitive.
Lord Clarke and Lord Brown concurred with the leading judgment but found Gnango liable on the first type of joint enterprise outlined above, suggesting that Gnango was a joint principal in an enterprise to engage in unlawful violence specifically designed to cause death or serious injury, where death occurred as a result.
In finding Gnango guilty on the basis of an argument that had not only been abandoned by the Crown at first instance but also not argued in front of the Court of Appeal the Supreme Court then had the difficulty of reconciling this with the judge’s original directions to the jury. The original trial judge had expressly not left aiding and abetting to the jury because the mens rea of aiding and abetting is an intention to assist the principal in the commission of an offence. There must be an element of encouragement and:
“in reality on the evidence, [the respondent] fired at Bandana Man in the hope of killing him or causing him grievous bodily harm, frightening him, or arguably, in self-defence. He cannot be said to have encouraged the other to fire back, whatever the order of shots as the jury might ultimately find them to be. He might have provoked further firing, but he did not encourage it.”
However, the Supreme Court’s lead judgment upheld the jury’s verdict on the grounds that the jury must have found that the Gnango and Bandana Man had a common purpose to shoot and be shot at, and encouraged each other to give effect to that purpose, even though this was not the manner in which the case was put to them.
The shortcomings of the majority judgments are admirably summarised by Lord Kerr in his dissenting judgment. Lord Kerr first of all questioned whether it could truly be said that Gnango aided and abetted Bandana Man in ‘agreeing’ to be shot at, and secondly whether the jury must have found that there was planned shoot-out and that the parties to it must have encouraged each other to shoot. Lord Kerr’s answer to both questions was a firm no.
“Being shot at was hardly likely to have been the desired outcome on the part of Gnango. Intending to encourage B to shoot him was even less likely . . . The Jury was never asked to confront the questions whether the shared common purpose was not only to shoot, but to be shot at . . . This is particularly so because there is an obvious explanation for the jury’s verdict other than that they concluded that there had been a plan which included an intention on the part of Gnango and B to encourage the other to shoot at him. The judge had put to the jury that if they were satisfied that Gnango and B had participated by agreement in an affray, in the course of which Gnango foresaw that B might commit intentional grievous bodily harm or kill, he could be found guilty on that account. For the reasons given by Lord Phillips, Lord Judge and Lord Dyson, with which I agree, this form of parasitic accessory liability was not a basis on which the jury could convict. But it seems to be likely in the extreme that this is the basis on which they did convict. That being so, there was no occasion for them to consider whether the requisite intention on the part of Gnango to found a verdict of guilty on the basis of aiding and abetting was present. Nor can their verdict be considered to supply the necessary ingredients of liability on that basis.” Para 115
The majority judgment was undoubtedly a policy led one. This was clearly indicated in the second paragraph, which stated that “In resolving the point of law it will be appropriate to have regard to policy” and in Lord Brown’s statement that “The general public would be appalled if in those circumstances the law attached liability for the death only to the gunmen who actually fired the fatal shot”. The Supreme Court judgment reflects the understandable view that those who open fire in public places with disregard to the lives of those around them should be culpable for the resulting deaths, but the judgment sacrifices legal clarity and coherence in order to uphold the conviction. It is a legal cliché that hard cases make bad law, but the judgment in Gnango is one that unfortunately illustrates why such clichés exist.