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