R v Gnango

Where two people voluntarily agree to engage in a gunfight, each intending to kill or cause grievous bodily harm, each is liable for the murder of an innocent bystander killed in the crossfire. Liability may be analysed through participation in the agreed lethal activity or through aiding and abetting combined with transferred malice. The distinction between principal and accessory does not affect guilt.

An intended victim is not immune from liability for participating in a crime directed against that person unless a statutory exemption or the protective purpose of the offence supplies such immunity. Affray does not necessarily involve a common purpose and therefore cannot, without more, support parasitic accessory liability.

The respondent and another gunman exchanged fire in a residential car park. Each intended to kill or cause serious injury to the other. A passer-by was killed by a bullet fired by the other gunman. The respondent was convicted of murder after the jury was directed that it had to find a joint plan or agreement to have a gunfight.

The Court of Appeal allowed his appeal and quashed the conviction: [2010] EWCA Crim 1691. It concluded that reciprocal violence did not ordinarily establish the common purpose required for parasitic accessory liability and that the jury had not been asked whether there was a shared purpose to shoot and be shot at.

The prosecution appealed. The central issue was whether a participant in an agreed, mutually homicidal gunfight was guilty of murdering an innocent bystander killed by the other participant.

1. By a majority, the appeal was allowed and the murder conviction restored. Lord Phillips and Lord Judge, with whom Lord Wilson agreed, held that the jury's verdict necessarily established a mutual plan or agreement to have a gunfight in which each participant would shoot at the other with intent to kill or cause serious injury. The direction excluded a case in which one gunman was merely acting in self-defence. On that finding, each participant was party both to his own shooting and to the other's attempt to shoot him.

2. Bandana Man's murderous intent towards the respondent transferred to the innocent passer-by whom he killed. The same doctrine applied to the respondent if, through the agreed shoot-out, he aided and abetted the attempt upon himself. No general common law rule prevents an actual or intended victim from being convicted as a party to an offence directed against that person. The statutory exemptions in section 2(1) of the Criminal Law Act 1977 and section 51 of the Serious Crime Act 2007 did not apply.

3. Lord Brown and Lord Clarke preferred to regard the respondent as a principal participant in agreed unlawful violence specifically designed to cause death or serious injury. Lord Dyson accepted both principal and accessorial analyses. The majority regarded the distinction as immaterial because a principal and an accessory are guilty of the same offence.

4. The case was not properly one of parasitic accessory liability. That doctrine requires a common intention to commit crime A, the commission by one participant of crime B as an incident of crime A, and foresight by the other that crime B might occur. Here there was either no common intention or an intention to engage in the homicidal shoot-out itself. It was artificial to divide the affray from the agreed lethal violence.

5. Affray under sections 3 and 6(2) of the Public Order Act 1986 may result from the combined conduct of antagonists without any common purpose. It therefore cannot automatically provide the common enterprise required for parasitic accessory liability. The majority discouraged using that doctrine to charge all participants in an affray with murder merely because they foresaw possible serious injury.

6. Lord Kerr dissented. He considered that the jury had neither been directed to decide whether the respondent agreed to be shot at nor whether he intended to encourage the other gunman. He also rejected joint-principal liability because causation had not been left to the jury. He would have dismissed the appeal.

1. United Kingdom Supreme Court: By a majority, allowed the prosecution appeal and restored the respondent's conviction for murder: [2011] UKSC 59.

2. Court of Appeal (Criminal Division): Allowed the respondent's appeal and quashed his conviction because the basis required for parasitic accessory liability had not been established: [2010] EWCA Crim 1691.

3. Crown Court: The respondent was convicted of murder after the jury found a joint plan or agreement to engage in a gunfight.