Gnango, R v

Liability for a further offence committed in the course of a joint enterprise requires more than foresight. The secondary party must participate in an underlying venture founded on a shared common purpose or on aiding and abetting, and must foresee the further offence as a possible incident of that venture.

Two people may each commit affray while pursuing reciprocal and antagonistic aims. Their individual guilt of the same public-order offence does not itself establish that they acted together or shared a purpose. Ordinarily, combatants intend to strike the other while avoiding being struck themselves. A direction which treats a mere exchange of violence as a joint enterprise is therefore erroneous.

The appellant and another gunman exchanged fire in a public car park. A bystander was killed by a bullet fired by the other gunman. The appellant was convicted at the Central Criminal Court before Cooke J of murder, attempted murder of the other gunman, and possessing a firearm with intent to endanger life.

The Crown did not maintain that the appellant encouraged the other gunman to shoot him. Instead, it alleged that both men had entered a joint enterprise to commit affray and that the appellant foresaw that the other might commit murder during the gunfight. The judge directed the jury on that basis.

The appellant appealed against the murder conviction and renewed his application for leave to appeal against the minimum terms imposed for attempted murder and the firearms offence. The central issue was whether two opposing gunmen who each committed affray had a shared common purpose sufficient to found secondary liability for the bystander’s murder.

1. Appeal against conviction allowed. The court quashed the murder conviction. The judge’s direction treated it as enough that the appellant and the other gunman each participated in an affray. That was an error.

2. Third-type joint-enterprise liability requires a joint enterprise in the underlying crime. It may arise from an agreement or shared common purpose, or from aiding and abetting that crime. The further crime must be a possible incident of that venture, foreseen by the secondary party, who nevertheless participates in it.

3. Foresight alone is insufficient. The court explained that R v Powell [1999] 1 AC and R v Rahman [2008] UKHL 45 were decided in contexts where the existence of the underlying joint enterprise was not in issue. They did not dispense with that requirement.

4. Affray under the Public Order Act 1986 can be committed by one person. Even where two opposed persons each commit it, the offence is constituted by the combined public effect of their separate violence. That does not mean that they share a purpose. Ordinarily, opposing fighters act independently and antagonistically: each seeks to strike the other and avoid being struck. There was no case of aiding and abetting, and the jury was not required to decide whether there was any shared purpose to shoot and be shot at.

5. The court left open whether genuinely agreed duels or analogous mutual combat might exceptionally establish such a shared purpose. That policy question did not arise for decision.

6. The court found no error in the original minimum terms, but exercised its power under section 4 of the Criminal Appeal Act 1968. It substituted detention for public protection for attempted murder with a minimum term of 15 years less time spent on remand. The firearms sentence was unchanged.

• Court of Appeal (Criminal Division) — Allowed the appeal against the murder conviction, quashed that conviction, and increased the attempted-murder minimum term under section 4 of the Criminal Appeal Act 1968.
• Central Criminal Court (Cooke J) — On 22 May 2008, convicted the appellant of murder, attempted murder and possessing a firearm with intent to endanger life. On 22 June 2008, imposed detention for public protection with minimum terms of 12 years for attempted murder and five years for the firearms offence.