Kimani Durrell-Smith v R

Where two persons fire at each other and liability is alleged for harm to a third party, the prosecution must prove a reciprocal agreement to engage in, assist or encourage the shooting. The agreement may be formed only moments before the shooting. Each participant must know that it is virtually certain that the others are armed and will open or return fire, and must intend to kill or cause really serious injury. The expression shoot out is only shorthand and cannot replace careful analysis of whether the necessary agreement and reciprocity are proved. If the evidence, taken at its highest, is capable of supporting those inferences, the issue is for the jury.

The appellant was convicted at the Crown Court at Birmingham of Count 8, the lesser alternative to attempted murder, concerning the shooting of Garth Pantry. The shot which injured Mr Pantry had been fired by the co-defendant, Aaron Nubie, after passing through the appellant. The appellant argued that he could not be liable because he was himself the victim of that shot, and that there was insufficient evidence of an agreed exchange of gunfire.

The trial judge refused applications to dismiss the relevant counts and a submission of no case to answer. The jury rejected self-defence, acquitted the appellant of attempted murder and convicted him of wounding with intent. The appeal concerned whether the evidence was capable of proving the agreement required by R v Gnango and the later authorities.

1. Disposition. Leave to appeal was granted, but the appeal against conviction on Count 8 was dismissed.
2. Applicable principles. The court treated R v Gnango [2011] UKSC 59 as establishing the relevance of a duel-like common purpose to shoot at and be shot at, while distinguishing a mere fight. The differing descriptions of liability as principal or accessory did not alter the majority result. The development of the law on joint offending in R v Jogee [2016] UKSC 8 and [2016] UKPC 7, and the subsequent decisions in R v Morgan [2021] EWCA Crim 895, R v Seed [2024] EWCA Crim 650 and R v ARU [2024] EWCA Crim 1101, defined the applicable scope.
3. The necessary agreement must be formed in advance, although it may arise only moments before the shooting. It must be an agreement to engage in, assist or encourage shooting at each other. Each participant must know that it is virtually certain that the others are armed and will open or return fire, and each must intend to kill or cause really serious injury. The phrase shoot out is an imprecise shorthand. It does not remove the need for the jury to analyse carefully whether reciprocity and the required agreement are proved.
4. Evidence and jury function. On a dismissal application or submission of no case, the question was whether the prosecution evidence, taken at its highest and with only properly available inferences drawn, could support a conviction by a reasonable jury. The CCTV, the surrounding circumstances and the other evidence were capable of supporting the necessary inferences. Matters such as the short duration of the exchange, Nubie’s approach, the appellant’s purchase of food and the appellant’s own injury were matters for the jury. The jury was properly directed and was sure that the incident constituted the relevant form of agreed shooting.
5. The court noted, without deciding the issue, that causation might raise a distinct question where liability was analysed as that of a principal rather than a secondary party. That issue was unnecessary to resolve this appeal.

• Court of Appeal (Criminal Division). Leave to appeal was granted. The court held that the trial judge had not erred in refusing the dismissal application or the submission of no case to answer, and dismissed the appeal: [2026] EWCA Crim 463.
• Crown Court at Birmingham. The appellant was convicted of Count 8, the lesser alternative to attempted murder, after the trial judge refused the relevant applications.