R v Gnango (Respondent)

Extract

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R v Gnango (Respondent)

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

Prosecution Service)

(Instructed by Mackesy's 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 respondent.

5. 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 exgirlfriend, 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.

6. 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.

7. 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.

8. 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.

9. Both the respondent and Band...

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