R v Kimani Durrell-Smith

Decisions certifying a point of law of general public importance and granting or refusing leave to appeal to the Supreme Court are pronounced in open court. They become orders when pronounced, and the time limit for an application runs from that date. The court certified, but did not determine in this pronouncement, the question whether a participant in an exchange of gunfire is criminally liable for an innocent bystander’s injury after the correction made in R v Jogee [2016] UKSC 8 to the earlier law associated with R v Gnango [2011] UKSC 59. Leave to appeal was refused.

The proceedings arose from an appeal from the Crown Court at Birmingham. In an earlier judgment handed down on 17 April 2026, reported at [2026] EWCA (Crim) 463, the Court of Appeal granted leave to appeal against conviction but dismissed the appeal. The resulting order incorrectly recorded the certification and leave decisions as having been made earlier. This pronouncement addressed the proper timing of those decisions, certified a question concerning joint-enterprise liability for injury to an innocent bystander, and refused leave to appeal to the Supreme Court.

The Court of Appeal, speaking through Lord Justice Edis on behalf of the constitution which had dealt with the substantive appeal, corrected the procedural position concerning certification and Supreme Court leave.

1. The earlier substantive judgment, handed down remotely on 17 April 2026 and reported at [2026] EWCA (Crim) 463, had granted leave to appeal against conviction but dismissed that appeal. The order had also recorded certification under section 33(2) of the Criminal Appeal Act 1968 and refusal of Supreme Court leave, although those decisions had not yet been pronounced in open court.
2. The court stated that the practice is for certification of a point of law of general public importance, and decisions on leave to appeal to the Supreme Court, to be pronounced in open court. Those decisions become orders when pronounced. Accordingly, the time limit for an application to the Supreme Court began on 14 May 2026, rather than on the date when the substantive judgment was handed down.
3. The court certified the question whether, where two participants exchange gunfire intending at least to cause really serious bodily harm and one participant’s shot injures an innocent bystander, the other participant is criminally liable after the correction in R v Jogee [2016] UKSC 8 to the earlier joint-enterprise law prevailing when R v Gnango [2011] UKSC 59 was decided. The question was certified for its general public importance; it was not decided by this short pronouncement.
4. Having certified the question, the court refused leave to appeal to the Supreme Court. Representation orders were granted for the proposed application and, if permission were granted, for the appeal.

• Court of Appeal (Criminal Division): In the substantive appeal, the court granted leave to appeal against conviction but dismissed the appeal in judgment [2026] EWCA (Crim) 463. On 14 May 2026 it certified a point of law of general public importance and refused leave to appeal to the Supreme Court.
• Crown Court at Birmingham: Proceedings before His Honour Judge Andrew Smith KC; the decision appealed from is not otherwise cited in the judgment.