New Judgment: R v Gnango [2011] UKSC 59
14 Wednesday Dec 2011
Matrix Legal Support Service New Judgments
Share it
On appeal from: [2010] EWCA Crim 1691
The Crown’s appeal concerns a defendant who had been exchanging fire with another gunman and had shot a third party in the head and killed her. Neither of the gunmen had been aiming at the victim. The trial judge had applied the principle of transferred malice, but the Court of Appeal had allowed the appeal from conviction on the basis that “joint enterprise” liability for murder could not arise on the facts.
The Supreme Court was asked to address the following question: “If D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grevious bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if 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 Supreme Court allowed the appeal by a 6-1 majority and restored the conviction for murder. It was held that the defendant was guilty of murder not as an accessory but as a principal to an agreement to engage in unlawful violence specifically designed to cause death or serious injury, and on the facts of this case whether the defendant is correctly described as a principal or an accessory is irrelevant to his guilt. Lord Kerr, dissenting, maintains that the trial judge did not invite the jury to address the important element of the avowed aiding and abetting: the agreement to be shot at. The exchange of fire was at least as likely to be the result of a sudden, simultaneous and coincident intention to fire at each other as the result of an agreement to shoot.
For judgment, please download: [2011] UKSC 59
For Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
3 comments
Atli Stannard said:
22/12/2011 at 20:46
The judgment is very interesting. I found Lord Kerr’s dissent most persuasive – and I suspect I won’t be the only one!
You can read a case note I have just had published in the Journal of Commonwealth Criminal Law, on Gnango, here: http://www.acclawyers.org/2011/12/21/jccl-case-note-r-v-gnango/.
Michael Bohlander said:
04/02/2012 at 20:22
Indeed, Lord Kerr got it right in my view.
The majority view means in effect that a person can be guilty of their own attempted murder i.e. of their attempted suicide via JCE despite the fact that there is no offence of attemtping to kill oneself anymore under English law – something which is overlooked when the judgment refers to the old common law.
So if the defendant tried to shoot himself he would not be committing an offence and arguably there would be no room for the application of transferred malice, either, if he hits a third person, because he has no mens rea for murder in the first place. Why he should become liable because someone else shoots at him is illogical. I think the real reason for the majority view can be found in para 61 and paras 68 – 69: public policy.
Note, however, that the German Federal Court of Justice in 1956 decided in a somewhat similar case (BGHSt 11, 268)that a person can be guilty of their own attempted murder. The case may be interesting from a comparative perspective – but note also that the German law does not generally support the doctrine of transferred malice:
P1, P2 and P3 had formed a gang that had been burgling houses and businesses for some time. They were each of them always armed with guns and had the standing agreement that they would shoot on anyone trying to follow and arrest them; they realised that they might kill somebody in the process and accepted this risk if only they could avoid detection (dolus eventualis – conditional intent). One night they tried to break into the house of V through a window; V awoke and shut the window in their face shouting at them, whereupon they fled. P1 heard steps behind him and saw a person running towards him, who he thought was V following him. In fact, it was P2. According to their agreement, P1 fired at the pursuer but did only cause damage to the clothes of P2. For P1 this was an irrelevant mistake of identity, and the BGH argued that because of the agreement to shoot at anyone following them, P3 was also bound by the conditional intent as to a possibly lethal result. For him, consequently, the same argument applied, because the basic intention of P1 to kill could be attributed to P3 by way of the agreement, and for both of them, the identity of the victim was irrelevant for a charge of attempted murder. However, the BGH also found P2 guilty of the attempted murder of himself, despite the fact that German law at that time did not provide for the criminalisation of harm to oneself, such as suicide. Had P2 tried to kill himself, he would not have committed a crime. The BGH treated the acts of P1 as an impossible attempt vis-à-vis the liability of P2, and to such a – generally punishable – attempt P2 could be a party under § 25(2) of the German Criminal Code, because for him, too, the identity of the victim was legally irrelevant. As long as the actions of one principal were within the scope of acts generally foreseen in the common agreement – shooting at pursuers – any mistake or error of one of them that was irrelevant to him would be irrelevant to the others.
For more details and a critique of the decision see my Principles of German Criminal Law, Hart, 2009, p. 166 f.
Ruairi Hipkin said:
09/01/2013 at 12:53
I must disagree with both of you. From what I read of both the Supreme Court and Court of Appeal judgements, the Crown led its case based on the idea that both defendants had met in order to shoot at each other, and in the ensuing fight the victim was killed. Because the Crown would have led the idea that each defendant participated in a JCE to murder the other, the mode of liability that is JCE would have to have been explained to the jury in their directions. Therefore, for Lord Kerr to state that there was no opportunity for the jury to consider that mode of liability is silly, as Lord Kerr is knowledgeable and sensible enough to consult the procedural history at least – or he could have read the leading joint-judgement of Lords Judge and Phillips.