R v Gnango

Under section 33(2) of the Criminal Appeal Act 1968, the Court of Appeal certified that the following point of law of general public importance was involved in its decision.

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?^[22]

The Supreme Court subsequently granted the Crown permission to appeal against the judgment of the Court of Appeal, and the appeal was heard before a panel of seven Justices on 11 and 12 July 2011. On 14 December 2011, the Supreme Court handed down its judgment. By a 6–1 majority, the court allowed the Crown's appeal, answered the certified question in the affirmative, and restored Gnango's conviction for the murder of Pniewska.^[23]

The President of the Court, Lord Phillips of Worth Matravers and the Lord Chief Justice of England and Wales, Lord Judge, jointly gave the leading judgment, with which Lord Wilson of Culworth agreed. They held that "[i]t is artificial to treat the intention to have an affray as a separate intention from the intention to have a potentially homicidal shooting match."^[24] They also held that "there is no common law rule that precludes conviction of a defendant of being party to a crime of which he was the actual or intended victim"^[25] and that consequently, under the doctrines of joint enterprise and transferred malice, Gnango was guilty of murder. They also held that it was unnecessary to determine whether Gnango was a principal in the first or second degree, arguing that "the offence is the same offence and the defendant is guilty of it".^[26]

Lord Brown of Eaton-under-Heywood concurred, adding that "The general public would be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot."^[23] He did, however, consider Gnango guilty as a principal. Lord Clarke of Stone-cum-Ebony agreed that Gnango was guilty as a principal.^[27] Lord Dyson concurred with the leading judgment and would have restored "the conviction on the basis that the jury must have been satisfied that the respondent aided and abetted the murder of Ms Pniewska by encouraging Bandana Man to shoot at him in the course of the planned shootout".^[28] Lord Kerr of Tonaghmore gave the only dissenting judgment. He would have dismissed the Crown's appeal on the basis that "there was no occasion for [the jury] 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"^[29] and that Gnango could not have been guilty as a joint principal.^[30]

On 19 January 2012, as a result of the judgment of the Supreme Court, the Court of Appeal (Hughes VP, Treacy & Blair JJ) restored Gnango's sentence of detention for life with a minimum term of twenty years for murder and reversed the Court of Appeal's earlier decision to increase the minimum term imposed for attempted murder.^[31]

Writing in The Guardian before the judgment of the Supreme Court was handed down, Anita Davies speculated that the reversal of the Court of Appeal's judgment would further complicate the law of joint enterprise and might "signal approval by English courts for a more American legal policy model for dealing with street violence".^[32]

Sir Richard Buxton, a former Lord Justice of Appeal, argued that "The Supreme Court approached the case with a strong propensity to find grounds for convicting G[nango] of murder." He described the reasoning of the court as "uncomfortable", and speculated that the trial judge and the jury would have considered it a "real oddity". He suggested that "Bandana Man" killing Pniewska rather than Gnango had "turned a man who otherwise would have been a suicide into a murderer".^[33]

Atli Stannard ^[who?] supported this analysis, suggesting that the prospect of Gnango being prosecuted for his own attempted murder "surely would ... be a farcical spectacle", and that the court's concern for public opinion had led it to make an erroneous decision.^[34]

Elaine Freer suggests that "it is very hard to see under what common law rule or legislation Gnango is guilty of murder ... [as] the mens rea for an affray is not the same as for a joint enterprise murder",^[35] while Alec Samuels considers that the case must be considered in the context of the "unsatisfactory state of the law and sentencing around murder and manslaughter", and the "[t]he basic problem [of] ... how far association amounts to complicity".^[36] Dr Jonathan Rogers, Senior Lecturer in Laws at University College London, suggests that an uncertain (quite obscure) route to finding the facts homicide renders the conviction unsafe and contrary to Article 6 of the European Convention on Human Rights, and that the decision was motivated by a desire to mollify public opinion.^[37]

The House of Commons Justice Committee, by contrast, noted only that the "case illustrates the difficulties that can arise for courts and juries considering the cases based on joint enterprise".^[38]

Before the Supreme Court had determined the appeal the Law Commission stated that the "case relates to a fairly narrow point" and that it could not offer an opportunity to address broader problems in the law of joint enterprise. The Commission concluded that "Legislative reform is ... needed."^[39]