JUDGMENT
R v Gnango (Respondent)
before
Lord Phillips, President
Lord Brown
Lord Judge
Lord Kerr
Lord Clarke
Lord Dyson
Lord Wilson
JUDGMENT GIVEN ON
14 December 2011
Heard on 11 and 12 July 2011
Appellant Respondent
Brian Altman QC Sallie Bennett-Jenkins QC
Mark Heywood QC Nina Grahame
(Instructed by Crown
Prosecution Service)
(Instructed by Mackesy’s
Solicitors)
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LORD PHILLIPS AND LORD JUDGE (WITH WHOM LORD WILSON
AGREES)
Introduction
1. Permission to appeal was granted in this case in order to enable this Court
to consider the following point of law, certified by the Court of Appeal as being of
general public importance:
“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?”
The facts of this case are unusual, but the importance of the point of law lies in the
implications that it may have in respect of the scope of potential liability of those
who permit themselves to become involved in public order offences.
2. No previous decision in this jurisdiction provides a clear indication of how
the point of law should be resolved. The principles of law that fall to be applied are
those of the common law, albeit that it will be necessary to consider a degree of
statutory intervention. The particular areas of criminal law that will have to be
considered are (i) joint enterprise; (ii) transferred malice; (iii) exemption from
liability where a party to what would normally be a crime is a victim of it. No
precedent indicates the result of the interaction of these three areas of law on the
facts of this case. In resolving the point of law it will be appropriate to have regard
to policy.
The facts
3. The following account of the facts is taken from the Agreed Statement of
Facts and Issues. This reproduces almost verbatim the summary of the facts in the
judgment of the Court of Appeal, delivered by Thomas LJ but to which all
members of the court had contributed. The other members were Hooper, Hughes
and Gross LJJ and Hedley J. Together the court brought to the problem very wide
experience in the field of criminal law.
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4. Shortly after 6 pm on Tuesday, 2 October 2007, a 26 year old Polish care
worker, Magda Pniewska, was walking home from a nursing home through a car
park for blocks of residential accommodation in New Cross, South London and up
steps towards an open piece of ground. She was on the telephone to her sister when
she was killed by a single shot to her head. That shot was fired in an exchange of
fire between two gunmen one of whom was the respondent.
5. The respondent, who was born on 26 May 1990, and was 17 years of age at
the time, had a dispute with another youth (‘TC’). At about 5 p.m. on 2 October
2007 he went with a friend, Nana Acheampong, by car to the home of his exgirlfriend, Roxanne Landell. Shortly thereafter Nana Acheampong and the
respondent drove round to a car park elsewhere on the same estate from where the
respondent went on foot to an adjacent car park. He had armed himself with a gun
which was silver in colour and he had several rounds of live ammunition. Nana
Acheampong had remained in the car.
6. A red Volkswagen Polo was already in the car park. There were four
occupants of the car, one of whom was pregnant. The respondent spoke to the
occupants of the Polo, as they were about to leave. According to two of them he
told them that “he had come to meet someone to handle some business”. He asked
if they had seen a man in a red bandana, saying that that man owed him some
money.
7. Very shortly thereafter the occupants of the red Polo saw someone come
down the steps towards the car park. His face was covered with a red bandana. At
the trial, he was referred to as “Bandana Man” and I shall so describe him in this
judgment. He pulled out a gun, black in colour, and started shooting at the
respondent. The respondent crouched down behind the red Polo, pulled out his gun
and returned the fire. The respondent fired two or three shots over the roof of the
car. He then went to the front of the car and started shooting over the bonnet whilst
the other man shot back. The clear evidence of those in the red Polo was that the
respondent was shooting at Bandana Man.
8. It was in that crossfire between the respondent and Bandana Man that
Magda Pniewska was killed. Scientific examination showed that the single bullet
to the deceased’s head did not come from the respondent’s gun; it had come from
the gun held by Bandana Man.
9. Both the respondent and Bandana Man fled from the scene. TC, who was
believed to be Bandana Man was arrested, but never charged. The respondent was
arrested four days later.
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10. The car park, in which the gun fight took place, was surrounded by closely
built, modern residential blocks in multiple occupation. All had windows facing
the parking area.
The areas of common law in play.
11. At this point we propose to summarise quite shortly the areas of common
law in play. It will be necessary to revert to these in greater detail when we come
to consider their application to the facts of this case.
Joint enterprise
12. Section 8 of the Accessories and Abettors Act 1861, as amended by the
Criminal Law Act 1977, provides:
“Whosoever shall aid, abet, counsel, or procure the commission of
any indictable offence, whether the same be an offence at common
law or by virtue of any Act passed or to be passed, shall be liable to
be tried, indicted, and punished as a principal offender.”
13. This section does not specify what is encompassed by the words “aid, abet,
counsel, or procure”. That question is determined by the common law. There is no
need in this case to attempt a comprehensive definition. In particular we can ignore
any complications that may arise in relation to the accessory before or after the
fact, who is not present when the criminal act is committed. Having regard to the
facts of this case we can start with this simple proposition. Where two persons, D1
and D2 agree to the commission of an indictable offence, where both are present at
the place where the criminal act is to be performed and where one of them, D1,
commits that act, both will be jointly liable for the crime. The act will have taken
place pursuant to their joint criminal purpose and D2 will be equally guilty with
D1, having aided, abetted, counselled or procured D1 to commit the crime.
14. The law becomes more complicated where, in the course of committing, or
attempting to commit the criminal act which is their common purpose, D1
commits a further criminal act which goes beyond that purpose. The example that
is usually given is the following. D1 and D2 break into a house with the common
intention of committing a burglary. They are surprised by the householder,
whereupon D1 hits him on the head with a jemmy and kills him. D2 had had no
intention, or wish, that either of them should inflict injury in the course of the
burglary but had foreseen the possibility that D1 might inflict serious injury in the
course of it. The situation exemplified by these facts has been repeatedly
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considered in different factual contexts by the Court of Appeal and the House of
Lords. These authorities were recently analysed by Hughes LJ when giving the
judgment of the Court of Appeal in R v A [2010] EWCA Crim 1622; [2011] QB
841. His conclusion, which we would endorse, appears in the following passage
from para 27 of his judgment:
“…the liability of D2 …rests, as all these citations show, on his
having continued in the common venture of crime A when he
realises (even if he does not desire) that crime B may be committed
in the course of it. Where crime B is murder, that means that he can
properly be held guilty if he foresees that D1 will cause death by
acting with murderous intent (viz either intent to kill or intent to do
GBH). He has associated himself with a foreseen murder.”
15. Professor Sir John Smith coined the phrase “parasitic accessory liability” to
describe this form of liability arising out of participation in a joint criminal
enterprise. While this is not the most elegant phraseology we propose to adopt it in
this judgment by way of convenient shorthand.
Transferred malice
16. The principles that we are about to describe have long been recognised by
commentators on the common law of crime, but there is a dearth of actual cases to
illustrate them. Where a defendant intends to kill or cause serious injury to one
victim, V1, but accidentally kills another, V2, he will be guilty of the murder of
V2. The basis of this liability is customarily described as “transferred malice”,
although a better description might be “transferred mens rea”– see Archbold 2011
ed at 17-24; Blackstone’s Criminal Practice 2011 at A2.13. The doctrine applies to
secondary parties as it does to principal offenders. Thus if D2 attempts to aid, abet,
counsel or procure D1 to murder V1 but D1, intending to kill V1, accidentally kills
V2 instead, D2 will be guilty of the murder of V2 – see Smith & Hogan, Criminal
Law,12th ed (2008) at p 205.
Exemption from liability where a party to what would normally be a crime is a
victim of it
17. In an article on “Victims and other exempt parties in crime” in (1990) 10
Legal Studies (1990), at p 245 Professor Glanville Williams identified a principle
that he described as the “victim rule.” He defined this as follows:
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“…where the courts perceive that the legislation is designed for the
protection of a class of persons. Such people should not be convicted
as accessories to an offence committed in respect of them when they
co-operate in it. Nor should they be convicted as conspirators.”
18. Professor Glanville Williams stated that the principle was founded on a
single English decision, but was widely accepted in common law countries. That
decision was R v Tyrrell [1894] 1 QB 710. Section 5 of the Criminal Law
Amendment Act 1885 made it an offence for a man to have carnal knowledge of a
girl between the age of 13 and 16. The defendant, a girl whose age fell within that
bracket, was convicted of (1) aiding, abetting, counselling and procuring the
commission of that offence by a man upon herself and (2) of inciting the man to
commit the same offence. On appeal these convictions were robustly quashed.
Lord Coleridge CJ, giving the leading judgment, said at p 712:
“The Criminal Law Amendment Act 1885 was passed for the
purpose of protecting women and girls against themselves. At the
time it was passed there was a discussion as to what point should be
fixed as the age of consent. That discussion ended in a compromise,
and the age of consent was fixed at sixteen. With the object of
protecting women and girls against themselves the Act of Parliament
has made illicit connection with a girl under that age unlawful; if a
man wishes to have such illicit connection he must wait until the girl
is sixteen, otherwise he breaks the law; but it is impossible to say
that the Act, which is absolutely silent about aiding or abetting, or
soliciting or inciting, can have intended that the girls for whose
protection it was passed should be punishable under it for the
offences committed upon themselves. I am of the opinion that this
conviction ought to be quashed.”
In R v Whitehouse [1977] QB 868 the Court of Appeal reluctantly held that this
principle precluded the conviction of a father for inciting his daughter, who was
under 16, to aid and abet him to commit incest with her.
19. Section 1 of the Criminal Law Act 1977 created a statutory offence of
conspiracy to commit a crime. Section 2(1) provides:
“2. – (1) A person shall not by virtue of section 1 above be guilty of
conspiracy to commit any offence if he is an intended victim of that
offence.
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(2) A person shall not by virtue of section 1 above be
guilty of conspiracy to commit any offence or offences
if the only other person or persons with whom he
agrees are (both initially and at all times during the
currency of the agreement) persons of any one or more
of the following descriptions, that is to say –
(c) an intended victim of that offence or of each
of those offences.”
Blackstone comments at A6.38 that section 2(1) appears designed to apply the
principle established by Tyrell. It will be necessary to consider in due course the
scope of this provision and whether, by analogy, the common law should prohibit
the conviction of a defendant for aiding and abetting an offence against the person
where he is the victim of the offence. Relevant to these questions is the more
restricted wording of section 51 of the Serious Crime Act 2007:
“(1) In the case of protective offences a person does not commit an
offence under this Part by reference to such an offence if-
(a) he falls within the protected category; and
(b) he is the person in respect of whom the protective offence
was committed or would have been if it had been committed.
(2) ‘Protective offence’ means an offence that exists (wholly or in
part) for the protection of a particular category of persons (‘the
protected category’)”
The judge’s ruling on the defence submission of no case to answer and the case
subsequently advanced by the Crown
20. At the end of the prosecution case Miss Bennett-Jenkins QC for the defence
submitted that there was no case to go to the jury. Mr Altman QC for the Crown
argued that there were two possible bases upon which the jury could convict. It
was common ground that Bandana Man had been guilty of murder of Miss
Pniewska, applying the principle of transferred malice in that he had plainly been
attempting to kill or cause serious bodily harm to the respondent. The first basis
upon which the jury could convict was that the respondent had aided and abetted
this murder, in that he had encouraged Bandana Man to fire at him with homicidal
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intent. When, however, the judge asked whether he was submitting that the
respondent aided and abetted his own attempted murder he replied that he could
not so submit. He argued that the liability of the respondent flowed “on a wider
basis” from the implicit agreement between himself and Bandana Man that they
should meet in a public place, each with an intent to kill or cause serious harm to
the other.
21. The judge rejected this argument. He observed that there was difficulty in
an analysis of a joint enterprise where the defendant was himself the intended
victim of the other gunman:
“He neither intended nor consented to bodily injury to himself at the
hand of the other, nor could he truly be said to be a party to a joint
enterprise to kill or cause grievous bodily harm to himself as the
intended target of the other.
Even if he contemplated that the other might shoot at him with the
necessary intent, he not being a party to the enterprise to cause harm
to himself, would not be liable for the unintended consequences on
that basis alone.
About this, in my judgment, there can be no doubt. There is no
possible joint enterprise involving the killing of himself to which the
defendant was privy as such. If he and Bandana Man had a common
enterprise to kill a third party, and Magda was killed by a bullet from
Bandana Man’s gun, then the doctrine of transferred malice could
operate to make Bandana Man guilty as a primary party to the
murder of Magda, and in as much as the defendant was privy to a
joint enterprise to kill someone in common with Bandana Man,
sharing that common intention, he would also be liable as a
secondary party.
Here, however, there was no common intention to murder any
particular person. Each of the protagonists had a separate intent to
kill or to seriously injure the other. Their intentions were parallel but
running in opposite directions.”
He later added
“Here, however, it cannot be said, in my judgment, that the
defendant actively encouraged Bandana Man to shoot at him, and
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even if he did, it would be a real oddity for a victim of an attempted
murder to be a secondary party to that attempt. In reality on the
evidence, the defendant fired at Bandana Man in the hope of killing
him or causing him grievous bodily harm, frightening him, or
arguably, in self-defence. He cannot be said to have encouraged the
other to fire back, whatever the order of shots as the jury might
ultimately find them to be. He might have provoked further firing,
but he did not encourage it.”
In the light of this ruling, Mr Altman did not pursue this way of putting his case.
22. The alternative case that Mr Altman advanced was one of parasitic
accessory liability. The judge accepted that this alternative was viable. He held that
it was open to the jury to find that the respondent and Bandana Man were subject
to a joint enterprise to commit an affray and that, if the jury then found that the
respondent foresaw and envisaged that Bandana Man might shoot and kill an
innocent passer-by this would found a verdict of murder on the part of the
respondent.
The judge’s direction to the jury
23. The judge crafted his direction to the jury with great care. He founded it on
the principle of parasitic accessory liability. For reasons that we shall explain we
do not consider that this principle could properly be applied on the facts of this
case. None the less it is necessary to set out a large part of his direction in order to
decide whether the jury must have been satisfied that the relevant elements of the
crime of murder, as we shall identify them, were proved:
“Now what the prosecution say about the defendant’s role in this
murder is that the defendant was involved in a joint enterprise, that is
a term which I will explain to you in a moment and which again will
appear in the piece of paper that I am going to give you. It was a
joint enterprise because it had a gunfight and both the defendant and
Bandana Man, say the prosecution, each took part in that gunfight,
realising that the other was likely to shoot, and might, in shooting,
with the intention of killing or causing really serious injury, kill
someone other than himself who was the immediate target of the
shots. And the prosecution say, in those circumstances, the defendant
is jointly responsible for the murder with Bandana Man on the basis
of this joint enterprise. ”…
Page 10
“Joint enterprise: that is a word I need to explain to you. Let me
explain that concept. It arises in the ordinary way where people
jointly commit an offence. Where a criminal offence is committed by
two or more people, each of them may play a different part in that
offence, but if they are in it together as part of a joint plan or joint
agreement to commit it, each is guilty of the planned offence.
The words ‘plan’ or ‘agreement’ that I have just used do not mean
that there has to be any formality about it. An agreement to commit
an offence may arise on the spur of the moment. Nothing needs to be
said at all. It can be made with a nod or a wink or just a knowing
look or by taking the first step in committing an offence in which the
other person then joins, so that it can be inferred from their
behaviour.
The essence of joint responsibility for a criminal offence is that each
person shared the intention to commit the offence and took some part
in it so as to achieve that aim, so in the ordinary way, you would
consider each person said to be involved, and if you are sure that he
took part in committing the offence with any intention necessary for
that offence, he would be guilty.
But there is a further element in the concept of joint enterprise, and it
is this: if two people agree or plan in the sense I have mentioned to
commit one offence, one type of offence, but during the course of it,
one of them commits another offence, both may still be responsible
for that other offence. Of course, the person who actually does the
offence, the act which constitutes that further offence will be guilty
of it, but the other person will also be guilty of it if he realised that
the act done was something which the first person might do with the
necessary intent as part of their planned offence.”…
“Now here it is said by the prosecution that Bandana Man and the
defendant planned to use unlawful violence towards another by
having a shoot-out, whether that plan was made beforehand and the
meeting was pre-arranged or was made on the spur of the moment
when they saw each other and fired at each other from the steps and
the car respectively.”…
“If you are sure that Bandana Man and the defendant joined together
to commit such unlawful violence by having a gunfight, whether preplanned or whether on the spur of the moment on the top of the steps
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and the side of the car, and that this joint enterprise came into being
before Magda was killed by a shot from Bandana Man, then the
defendant would be guilty of murder also, along with Bandana Man,
provided the other requirements are satisfied.
So if you are sure that Bandana Man and the defendant were in a
joint enterprise to cause an affray, to use unlawful violence against
each other by having a gunfight and by firing at each other, whether
this joint enterprise was the result of a pre-planned meeting or arose
on the spur of the moment when they saw each other, and that in the
course of that joint enterprise fight, Magda was murdered by
Bandana Man on the basis of transferred malice, as I have explained
it to you, and that the defendant realised – and the prosecution say
that he must have realised — that in the course of their joint
enterprise gunfight, Bandana Man might kill with the requisite
intention for murder, then the defendant would also be guilty of
murder.”
The decision of the Court of Appeal
24. Before the Court of Appeal Mr Altman made no attempt to revive the first
way that he had sought to put the Crown’s case. He sought to uphold the judge’s
direction on the basis of parasitic accessory liability. Miss Bennett-Jenkins
submitted that this case was not viable. The starting point for parasitic accessory
liability was a joint enterprise. There had been no joint enterprise. The respondent
and Bandana Man had each been engaged on a separate, individual and
diametrically opposed enterprise, for each was out to harm the other. So far as
foresight of Bandana Man’s conduct was concerned, all that the respondent could
have foreseen was that Bandana Man would try to kill him. Parasitic accessory
liability was founded on encouragement to commit the further offence, implicit in
pursuing the original joint venture. The judge had rightly found that the respondent
had not encouraged Bandana Man to shoot at him. Thus the further essential
element of encouragement was missing.
25. The Court of Appeal accepted this argument. Its reasoning was complex
and spanned paras 48 to 70 of its judgment, but we believe that we can summarise
it quite shortly. Parasitic accessory liability has to arise out of a joint enterprise
that involves the two parties acting together, or in concert, or for a common
purpose. Where an affray is alleged to have arisen from a fight between two people
it does not ordinarily involve a joint enterprise or common purpose. Ordinarily the
purpose of each protagonist to such an affray is the individual purpose of striking
the other and avoiding being struck himself. Such purposes are not shared by the
two protagonists, they are reciprocal, or equal and opposite purposes. It was none
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the less possible to envisage a scenario in which two persons shared a common
purpose to strike and be struck – a prize-fight or a duel were examples of this. On
the facts of the present case there might have been a common purpose to shoot and
be shot at, as in a duel, but the judge had never asked the jury to consider that
possibility. The reasoning of the court was summarised in para 59 of its judgment:
“What is at issue here is secondary liability. The essence of
secondary liability is that the parties are acting together or, as it is
often put, in concert. For what we have described as the third type of
joint enterprise liability they must be acting together or in concert in
crime A, here affray. Two people who voluntarily engage in fighting
each other might, exceptionally, be acting together or in concert, but
ordinarily they are not. It is not realistic to say that they acted in
concert to cause fear; they acted independently and antagonistically
in a manner which did so. Absent a shared purpose to shoot and be
shot at, the submission made by the appellant was correct that there
was no room on the facts for any other common purpose. The jury
was never asked to confront the question whether the shared
common purpose was not only to shoot, but to be shot at.”
26. The Crown had accepted that the respondent could not be convicted on the
basis that he had been party to a joint enterprise with Bandana Man to shoot at
each other, with the intent to kill or cause really serious bodily injury for the
following reason (para 33):
“The difficulty … on the facts of the current case is that the appellant
himself was the intended victim of the other man. The appellant
neither intended nor consented to bodily injury to himself at the hand
of the other man nor could he truly be said to have been party to a
joint enterprise to kill or cause harm to himself (being the intended
target of the other man). Even if he had contemplated that the other
man might shoot at him with the necessary intent, he not being a
party to the enterprise to cause harm to himself, could not be liable
for any unintended consequences on that basis alone.”
The Court of Appeal referred to this concession and emphasised at para 37 that it
had not considered whether it was correctly made.
27. However the Court of Appeal returned to the concession in a post-script to
its judgment and set out the following arguments that raised a question mark over
the concession.
Page 13
“73. …
(i) If two persons agree to a duel with the use of guns, they
have agreed to shoot at each other with the intention of killing
or seriously harming the other. That activity, as a matter of
ordinary language, could be described as an agreement to
shoot and be shot at. To that extent it is arguable that they
have a shared common purpose.
(ii) Clearly an agreement to a duel or to shoot at each other is
illegal, as no-one can consent to run the risk of being killed in
such a way. As Lord Templeman pointed out in R v Brown
(Anthony) [1994] 1 AC 212, 231, the defence of consent never
availed a person who maimed the other participant in a duel:
Hawkins’ Pleas of the Crown 8th ed (1824), vol 1, ch 15. In
Attorney General’s Reference (No 6 of 1980) [1981] 1 QB
715, it was made clear that ‘it is not in the public interest that
people should try to cause or should cause each other harm for
no good reason. … It is immaterial whether the act occurs in
private or in public; it is an assault if actual bodily harm is
intended or caused.’
(iii) There can be an agreement to use unlawful violence by
two opposing and antagonistic persons, illegal though it is. In
R v Coney (1882) 8 QBD 534, all the judges were agreed that
both prize fighters were guilty of an assault on each other.
Although each would be guilty as a principal of a separate
offence, it is arguable that the two prize fighters have a simple
agreement to exchange blows and to that extent share a
common purpose to hit and be hit.
(iv) The question would then arise, if it was accepted that two
prize fighters can have an agreement to hit and be hit, as to
whether the use of lethal weapons made a difference. If there
really is an agreement to shoot and be shot at, it is arguable
that it does not. Just as in the case of prize fighters, each
hoped that the other would be wounded or killed, but that he
would not be. But the fact that each hoped for a different
outcome, did not necessarily mean that they did not share a
common purpose of shooting and being shot at.” (emphasis
added)
28. The Court of Appeal went on to consider issues of policy:
Page 14
“74 There is at the heart of this issue a question of policy. Does the
justice and effectiveness of the criminal justice system require the
imposition of liability in cases of genuinely agreed duels by
acceptance that there can be a joint enterprise of the first type
between opposing persons if they agree not only to hit but to be hit?
75 But there is also a second question. At para 58, we referred, in the
context of the judge’s directions to the jury, to the wider implications
for criminal liability for death or injury or damage that occurs in the
course of a fight between two gangs. Spelling that second question
out may assist.
i) Say a ‘home’ group meet an ‘away’ group, each
seeing that the other is armed with sticks and bars. They begin
a fight.
ii) In the course of the fight members of the ‘home’
group use bars intentionally to cause really serious injuries to
a member of the ‘away’ group and in the course of doing so
injure an innocent bystander; each receives really serious
injuries from which he dies.
iii) It could readily be inferred that all those
engaged in the fight foresaw that there was a real possibility
that one of those engaged in the fight or an innocent bystander
might be caused serious bodily injury by being intentionally
struck by one of those fighting with a bar in the course of the
fight.
What are the circumstances in which the members of the ‘away’
group bear criminal responsibility for the death of the member of
their group or the innocent bystander caused by the ‘home’ group?”
The court commented that both of these issues of policy were questions for the
future. Because of a change of tack by the Crown in this court the time has now
come to consider them.
The Crown case before this Court
Page 15
29. Before this Court Mr Altman QC for the Crown has sought to revive the
case that he had abandoned at the trial and had not sought to advance before the
Court of Appeal. Paras 30 to 48 of his written case are devoted to arguing that the
respondent had been an accessory to Bandana Man’s attempt to kill him and thus
shared Bandana Man’s liability, as a result of the doctrine of transferred malice,
for the murder of Miss Pniewska. This radical change of case is perhaps inspired
by the obiter comments of the Court of Appeal and by commentary on those
comments in [2011] Crim L R 151, 156.
30. In the alternative Mr Altman has sought to rely upon the doctrine of
parasitic accessory liability that had been rejected by the Court of Appeal.
Discussion: Parasitic accessory liability in public order offences
31. We propose to start by considering Mr Altman’s attempt to rely upon the
doctrine of parasitic accessory liability. We shall first of all explore the reasoning
of the Court of Appeal in concluding that this was not a viable route to convicting
the respondent of murder. We shall then draw attention to a further significant
difficulty that Mr Altman faces in seeking to rely upon this doctrine.
The nature of the offence of affray
32. Affray was a common law offence with its origin many centuries ago. By
the middle of the twentieth century it had been lost from sight, for as Lord
Goddard CJ remarked at p 559 of R v Sharp; R v Johnson, [1957] 1 QB 552, the
first case in which the offence resurfaced, there seemed to be no reported case
which dealt with it. That case involved a fight between the two defendants in a
public place in the presence of a large number of spectators. They were jointly
indicted on a charge of affray and convicted. On the basis of distinguished and
venerable commentaries Lord Goddard identified the offence of affray as one
committed where two or more persons fought in a public place to the terror of the
King’s subjects. In that case the convictions of the two appellants were quashed on
the ground that each claimed to have been acting in self-defence, and this defence
had not been left to the jury. Lord Goddard held at p 561:
“If two men are found fighting in a street one must be able to say
that the other attacked him and that he was only defending himself.
If he was only defending himself and not attacking that is not a fight
and consequently not an affray.”
Page 16
33. This comment proved to be an over-simplification. Having been
rediscovered, affray became a very popular charge, being used on literally
thousands of occasions, and in due course received consideration by the House of
Lords. In R v Button; R v Swain [1966] AC 591 the issue was whether an affray
had to take place in a public place. The House held that it did not. Lord Gardiner
LC, giving the only reasoned speech, held at p 625 that the essence of the offence
was that two or more fought together to the terror of the Queen’s subjects. In R v
Taylor (Vincent) [1973] AC 964 the House of Lords, disapproving the dictum of
Lord Goddard in Sharp and Johnson, held that a single defendant could be guilty
of affray if he fought with another, who lawfully defended himself. Lord Morris of
Borth-y-Gest put the matter as follows at p 991:
“But if two men are seen to be “fighting in a street” with the result
that terror is caused to the Queen’s subjects and if it has all come
about because one is an aggressor while the other was merely
defending himself I see no reason why the aggressor should be
immune from conviction for affray. Those who see the fighting may
have no means of deciding how it came about or whose fault it was.
They may not be able to appreciate that one man is merely defending
himself and doing his best to disengage. The terror and alarm caused
to them by the fighting will not be any the less because the fact may
be that one man of the two was only of necessity engaged in the
fighting.”
34. In 1983 the Law Commission published a report, HC 85; Law Com No 123,
on Offences Relating to Public Order. They recommended that the common law
offence of affray should be preserved in an Act that would replace the common
law offences of riot, unlawful assembly and affray. In the draft Bill appended to
the Report they defined the offence of affray as follows:
“3(1) Where two or more persons use or threaten unlawful violence
against each other, or one or more persons use or threaten unlawful
violence against another, and their conduct is such as would cause a
person of reasonable firmness present at the scene to fear for his
personal safety, each of those persons commits the offence of
affray.”
35. This was followed by a White Paper, May 1985 Cmnd 9510, entitled
Review of Public Order Law. This stated at para 3.15 that the Government was
content to accept the Law Commission’s proposed statutory definition of affray.
Unfortunately the draftsman of what was to become the Public Order Act 1986
appears to have thought that he could improve on the drafting of the Law
Commission. Thus the definition of affray in section 3 of that Act is as follows:
Page 17
“(1) A person is guilty of affray if he uses or threatens unlawful
violence towards another and his conduct is such as would cause a
person of reasonable firmness present at the scene to fear for his
personal safety.
(2) Where 2 or more persons use or threaten the unlawful violence, it
is the conduct of them taken together that must be considered for the
purposes of subsection (1).”
36. We have emphasised the words the unlawful violence because they gave
rise to considerable debate on this appeal. They are hard to reconcile with the
passage that we have quoted from the speech of Lord Morris in R v Taylor. More
significantly, if given their natural meaning, they would appear to suggest that two
defendants can only be jointly liable on a single count of affray if they join in
using violence towards another; if they fight each other each commits an
individual offence of affray, but they are not guilty of a joint offence.
37. This would be nonsensical. We do not consider that the Act has altered the
common law offence of affray in this way. The joint offence of affray can be
founded on the common product of individual conduct, viz violence capable of
causing fear, and does not require any common intention or purpose on the part of
the joint participants. Section 6(2) sets out the mens rea of the offence as follows:
“A person is guilty of violent disorder or affray only if he intends to
use or threaten violence or is aware that his conduct may be violent
or threaten violence.”
38. Thus an affray need not involve any common enterprise or common
purpose. The Court of Appeal rightly held that parasitic accessory liability must be
founded on a common unlawful enterprise or purpose. It is joining in this common
enterprise that renders the conduct of the accomplice an encouragement to the
principal to commit the additional offence, thereby justifying the conviction of the
accomplice. Because affray does not necessarily involve any common purpose it
cannot automatically constitute a foundation for parasitic accessory liability.
39. The Court of Appeal left open, however, the possibility that, on the facts of
an individual case, affray may be the product of a common purpose or enterprise
capable of providing a foundation for parasitic accessory liability. A duel was
given as an example of such a situation. So might the facts of the present case if
they evidenced an agreement to shoot and be shot at. The court held, however, that
this possibility had not been left to the jury.
Page 18
40. Many public order offences constitute a spontaneous outburst of reciprocal
violence, often fuelled by alcohol. They can, however, involve a common purpose
– indeed such a common purpose is an element of the offence of riot. It is not
uncommon for groups of youths, supporters of rival football clubs for example, to
plan to meet in order to do battle. It may be that most involved in such a skirmish
have no wish to cause serious injury. There will, however, be an obvious
possibility that one or more of those involved may go beyond the common
intention of the majority of the combatants and deliberately cause serious injury. If
such an event occurs and a victim suffers serious injury, or even dies, are all who
were present guilty of causing grievous bodily harm, or murder where the victim
dies, by reason of the doctrine of parasitic accessory liability? It is this question
that the Court of Appeal raised, but left unanswered.
41. For reasons that we shall explain the facts of this case do not require an
answer to the question, despite the reformulation of the Crown’s case. We would
consider it undesirable, however, if a practice developed of relying on the doctrine
of parasitic accessory liability to charge with murder parties to an affray who had
not themselves intended that it would result in serious injury.
No issue of parasitic accessory liability arises in this case
42. Parasitic accessory liability arises where (i) D1 and D2 have a common
intention to commit crime A (ii) D1, as an incident of committing crime A,
commits crime B, and (iii) D2 had foreseen the possibility that he might do so.
Here there was no crime A and crime B. It cannot be said that the two protagonists
had a joint intention to commit violence of a type that fell short of the violence
committed. Either Bandana Man and the respondent had no common intention, or
there was a common intention to have a shoot out. If they intended to have a shoot
out, then each necessarily accepted that the other would shoot at him with the
intention to kill or cause serious injury. Neither intended that the other should kill
him but each accepted the risk that he might do so.
43. The Crown sought to suggest that there was a joint intention to have an
affray, which was crime A, and that the killing by Bandana Man was crime B, for
which the respondent was liable as an accessory because it was within his
contemplation as a possible, albeit unintended, incident of crime A. The fallacy of
this argument is that, if there was a joint intention to have an affray, that intention
was to have an affray by shooting at each other with homicidal intent. It is artificial
to treat the intention to have an affray as a separate intention from the intention to
have a potentially homicidal shooting match.
The victim rule
Page 19
44. Why was the Crown so keen to establish liability under the doctrine of
parasitic accessory liability? The answer is, we believe, that the Crown believed
that this route would enable it to by-pass what was perceived to be a barrier to the
direct route to the respondent’s liability for murder. The direct route was as
follows:
i) Bandana Man attempted to kill the respondent;
ii) By agreeing to the shoot out, the respondent aided and abetted
Bandana Man in this attempted murder;
iii) Bandana Man accidentally killed Miss Pniewska instead of the
respondent. Under the doctrine of transferred malice he was guilty of her
murder.
iv) The doctrine of transferred malice applied equally to the respondent
as aider and abetter of Bandana Man’s attempted murder. He also was
guilty of Miss Pniewska’s murder.
45. The Crown believed that there was a barrier to this direct route to the
respondent’s liability for murder. This was the application of the victim rule. Mr
Altman, when discussing the law with the judge, stated that the respondent could
not aid and abet his own attempted murder. If this proposition correctly represents
the law, we do not see how the Crown can avoid its effect by invoking the doctrine
of parasitic accessory liability. Parasitic accessory liability does not differ in
principle from the more common basis for finding someone guilty of aiding,
abetting, counselling or procuring the commission of a crime. In so far as the law
precludes conviction for aiding and abetting a crime in respect of which the
defendant is the victim, it must surely do so whatever the route by which the
defendant would otherwise be held to have been an accomplice.
46. We turn then to consider the Crown’s new case, which is that the conviction
of the respondent can be justified on the basis that the respondent aided and
abetted the commission of the murder by actively encouraging Bandana Man to
shoot at him. In relation to this case it seems to us that the issues for the Court are
as follows:
i) Does the victim rule preclude the conviction of a defendant for
aiding and abetting a crime in respect of which he is the victim, even where
the crime is not designed to protect a particular class of which the victim is
a member? If yes,
Page 20
ii) Does the victim rule preclude the conviction of a defendant for
aiding and abetting a crime in respect of which he was the intended victim,
but where the actual victim is a third party?
iii) If the victim rule did not preclude the respondent’s conviction for
aiding and abetting the murder of Miss Pniewska, was the judge’s direction
to the jury a sound basis for the jury’s guilty verdict?
The scope of the victim rule
47. The first question to consider under this head is whether there is any
statutory bar to prosecuting the respondent for being party to a crime in respect of
which he was the intended victim. So stated this perhaps begs the question, for it
presupposes that the respondent was a prospective “victim” for the purpose of the
victim rule. If the first question produces a negative reply, it will then be necessary
to consider whether there either is, or should be, a victim rule under the existing
common law, or the common law as this court should develop it.
48. The origin of the victim rule appears to lie in the decision in Tyrrell – see
para 18 above. The decision in that case can best be interpreted as being based on a
term to be implied into the Criminal Law Amendment Act, based as the reasoning
was on the implied intention of Parliament. The decision does, however, illustrate
the application of the general rule defined by Professor Glanville Williams, as set
out at para 17 above.
49. Section 2(1) of the Criminal Law Act 1977, set out at para 19 above, applies
a wider principle than Glanville Williams’ formulation of the victim rule, if
“victim” is given the wide meaning of any person who will be harmed by the
offence. The scope of the word “victim” in that context has not, however, received
judicial consideration so far as we are aware. If it is given the wide meaning it
would seem to produce the surprising result that a conspiracy by two persons that
one will commit a terrorist atrocity as a suicide bomber, or to set fire to a house
owned by one of them in furtherance of some ulterior motive, would appear not to
subject either to criminal liability. There is a case for confining the meaning of
“victim” to persons of a class that the relevant Act is intended to protect, thus
bringing section 2(1) into accord with the victim rule, as defined by Glanville
Williams. At all events, section 2(1) is confined to the crime of conspiracy and can
have no direct application to the facts of this case.
50. The case for giving a narrow construction to “victim” in section 2(1) of the
Criminal Law Act 1977 is perhaps strengthened by the limited exemption from
Page 21
criminal liability conferred by section 51 of the Serious Crime Act 2007, which we
have set out at para 19 above. This section gave effect to a recommendation of the
Law Commission that the principle in Tyrrell should apply to proposed offences of
encouraging or assisting crime – see 12(4) of Halsbury’s Statutes, 4th ed, at paras
401 and 408. This provision also has no application to the facts of this case.
51. It follows that there is no applicable statutory victim rule that precludes
conviction of the respondent on the basis that he aided and abetted Bandana Man’s
attempt to kill him or cause him serious injury. Is there, or should there be a
common law rule that does so?
52. The fact that Parliament found it necessary to enact section 2(1) of the 1977
Act and section 51 of the 2007 Act is cogent indication 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. We are satisfied that there is no such
rule. This is evident from the fact that, under common law, attempted suicide was
a crime, as was aiding and abetting suicide. The victim of a successful suicide
attempt could not, of course, be prosecuted, but if in an attempt to commit suicide,
the defendant killed a third person, he committed the crime of murder under the
doctrine of transferred malice – see R v Hopwood (1913) 8 Cr App R 143 and R v
Spence (1957) 41 Cr App R 80.
53. We can see no reason why this Court should consider extending the
common law so as to protect from conviction any defendant who is, or is intended
to be, harmed by the crime that he commits, or attempts to commit. Such an
extension would defeat the intention of Parliament in circumscribing the victim
rule in section 51 of the 2007 Act. In R v Brown (Anthony) [1994] 1 AC 212 sadomasochists were held to have been rightly convicted of causing injury to others
who willingly consented to the injuries that they received. There would have been
no bar to conviction of the latter of having aided and abetted the infliction of those
injuries upon themselves. It is no doubt appropriate for prosecuting authorities to
consider carefully whether there is justification for prosecuting anyone as party to
a crime where he is the victim, or intended victim of that crime, but that is not to
say that the actual or intended victim of a crime should on that ground alone be
absolved from criminal responsibility in relation to it. As Lord Lane CJ observed
in Attorney-General’s Reference (N0 6 of 1980) [1981] QB 715, 719:
“…it is not in the public interest that people should try to cause, or
should cause, each other actual bodily harm for no good reason ”
The victim rule and transferred malice
Page 22
54. In the light of the conclusion that we have just reached, no question arises
as to the application of the victim rule where, although the intended victim of the
crime to which the defendant is party is the defendant himself, the actual victim
proves to be a third party.
Was the judge’s direction to the jury a sound basis for their guilty verdict?
55. If the respondent aided, abetted, counselled and procured Bandana Man to
shoot at him he was, on my analysis, guilty of aiding and abetting the attempted
murder of himself. Had he been killed by Bandana Man, he would have been a
party to his own murder. Although he had not intended that Bandana Man should
succeed in hitting him, complicity in his attempt to do so would have rendered him
a party to the successful achievement of that attempt. As it was, Bandana Man
accidentally shot Miss Pniewska. Under the doctrine of transferred malice he was
liable for her murder. Under the same doctrine, the respondent, if he had aided
abetted, counselled and procured the attempt, was party to the murder that resulted.
Does it follow that, having regard to the terms of the judge’s directions, the jury
must have been satisfied that the respondent had aided, abetted, counselled and
procured Bandana Man to shoot at him with murderous intent? If so, his conviction
can stand. If not, the Court of Appeal correctly quashed it.
56. In his ruling that there was a case to go to the jury the judge ruled that that it
could not be said that the defendant actively encouraged Bandana Man to shoot at
him. He could not be said to have encouraged Bandana Man to fire at him,
although he might have provoked this. Perhaps it was with this passage of his
ruling in mind that the Court of Appeal observed at para 59 that the jury was never
asked to confront the question whether the shared common purpose was not only
to shoot but be shot at. In the next paragraph the Court of Appeal observed that,
the judge was, in effect, leaving to the jury a limited common purpose – limiting it
to an exchange of gun fire which did not extend to the gunman being hit.
57. Having carefully considered the passages in the judge’s summing up that
we have set out at para 23 above we do not consider that they support the Court of
Appeal’s conclusion. It may well be that the intention of the judge was to direct the
jury to consider whether there was a common intention to have an affray that fell
short of an intention to shoot at each other and be shot at. For the reasons that we
have given this would have been an incredible scenario. Either there was no joint
plan or agreement at all, or there was a common intention to shoot at one another,
which can only mean to shoot and be shot at. What matters, however, is not the
route that the judge considered would lead to a conviction, but the direction that he
gave to the jury. He directed the jury that, in order to convict they had to be
satisfied that there was a plan or agreement to “have a shoot out”… “whether made
Page 23
beforehand…or made on the spur of the moment when they saw each other and
fired at each other from the steps and the car park respectively”.
58. This direction did not permit the jury to convict if they believed that one of
the protagonists might have been the aggressor and the other merely responding in
self defence. It was an unequivocal direction that the jury could convict only if
they were satisfied that the protagonists had formed a mutual plan or agreement to
have a gun fight in which each would attempt to kill or seriously injure the other.
If the jury were satisfied of this, the consequence in law was that each of the
protagonists was party, not merely to his own attempt to kill or seriously injure the
other, but to the other’s attempt to kill or seriously injure him. Contrary to the
finding of the Court of Appeal, the direction of the judge required the jury to
consider whether they were satisfied that the respondent and Bandana Man had a
common plan or agreement to shoot at each other and be shot at. If they were so
satisfied, and their verdict indicates that they were, this was a proper basis for
finding that the respondent was guilty of murder.
59. In arguing at the close of the prosecution case that there was a case of
simple aiding and abetting to go to the jury Mr Altman sought to draw an analogy
with a duel. There is indeed a close analogy between a consensual gunfight and a
duel. In the case of a duel all who are present and who lend encouragement to the
duel will be guilty of aiding and abetting each of the protagonists in his attempt to
kill or injure the other. If one is killed, all who gave encouragement will be guilty
of murder, and this includes the seconds on each side – see R v Young and Webber
(1838) 8 C & P 644. It logically follows that each protagonist will be party to the
violence, or attempted violence, inflicted on himself by his opponent. The same is
true of a prize fight. In R v Coney (1882) 8 QBD 534 each protagonist was held
guilty of assaulting the other and a number of bystanders were held to have
encouraged, and thus to have been guilty of aiding and abetting, the assaults of
both. Once again each protagonist could properly have been held guilty of aiding
and abetting the assault by the other upon himself.
60. A guilty verdict in this case involves a combination of common law
principles in relation to aiding and abetting and the common law doctrine of
transferred malice, In Attorney General’s Reference (No 3 of 1994) [1998] AC
245, 261 Lord Mustill commented of the latter doctrine:
“Like many of its kind this is useful enough to yield rough justice, in
particular cases, and it can sensibly be retained notwithstanding its
lack of any sound intellectual basis. But it is another matter to build a
new rule upon it.”
Page 24
61. We have considered whether to hold the respondent guilty of murder would
be so far at odds with what the public would be likely to consider the requirements
of justice as to call for a reappraisal of the application of the doctrine in this case.
We have concluded to the contrary. On the jury’s verdict the respondent and
Bandana Man had chosen to indulge in a gunfight in a public place, each intending
to kill or cause serious injury to the other, in circumstances where there was a
foreseeable risk that this result would be suffered by an innocent bystander. It was
a matter of fortuity which of the two fired what proved to be the fatal shot. In other
circumstances it might have been impossible to deduce which of the two had done
so. In these circumstances it seems to us to accord with the demands of justice
rather than to conflict with them that the two gunmen should each be liable for
Miss Pniewska’s murder.
62. We have considered the judgments of Lord Brown and Lord Clarke. They
essentially agree with our conclusions. Each, however, considers that the
defendant was liable as a principal to the agreed joint activity of shooting with
intent to kill or cause serious injury, rather than as an accessory to the act of firing
the shot. This is not a difference of substance. It may well be that, in terms of the
common law, Bandana Man was a principal in the first degree and the respondent
was a principal in the second degree – see Archbold, 2011 edition, para 18-1. But
as Archbold remarks at para 18.6:
“the distinction between a joint principal and an abettor is sometimes
difficult, and unnecessary, to draw.”
Whether the respondent is correctly described as a principal or an accessory is
irrelevant to his guilt. In R v Giannetto [1997] 1 Cr. App. 1 the appellant was
convicted of murdering his wife. The Crown was unable to say whether he had
inflicted the fatal injuries himself or, at the very least, had arranged for someone
else to do so. On this basis however he was guilty of her murder either as a
principal or as an accessory. Following his conviction the appellant argued that the
judge had erred in law when he failed to direct the jury that they must be
unanimous as to which of the two versions of events advanced by the Crown they
accepted.
63. If the jury were not sure which of the two alternatives they found proved,
then the appellant was entitled to be acquitted. After an examination of the
authorities, the submission was rejected.
“If the jury does convict it may do so with some jurors satisfied that
the defendant was actually the killer, but all will be satisfied that if
not himself the killer at least he encouraged and by reason of the
Page 25
statutory provision in the 1861 Act … no more is necessary to prove
the offence”. (per Kennedy LJ at 5)
This decision simply reflects the reality that whether an offence is committed as a
principal or as an accessory, the offence is the same offence and the defendant is
guilty of it. There may be many situations in which it will be important to
distinguish between the principal and the accessory, but this is not such a case.
64. On the jury’s verdict, both men agreed to the joint enterprise of having a
shoot-out. Whether, on strict analysis, that made the respondent guilty as a
principal to Bandana Man’s actus reus of firing the fatal shot, or guilty as one who
had “aided, abetted counselled or procured” his firing of that shot creates no
practical difficulty on the facts of this case and does not affect the result.
65. For these reasons we would answer the certified question in the affirmative,
allow this appeal and restore the respondent’s conviction for murder.
LORD BROWN
66. The central question for decision on this appeal can be shortly posed. Two
armed men (let us call them A and B) confront one another in a south London car
park and there engage in an unlawful gunfight, each with the intention of killing or
at least seriously injuring the other. Neither is acting in self defence. Rather the
gunfight was agreed, either pre-arranged or resulting from a spur of the moment
decision by both. Neither in fact succeeds in hitting his adversary but in the course
of their crossfire a passerby (C), one of several people in the vicinity, is
accidentally killed. B it was who fired the fatal bullet and indisputably he is guilty
of C’s murder: the principle of transferred malice so dictates. But is A too guilty of
C’s murder? That is the critical question before us.
67. A here is the respondent, Mr Gnango (the successful appellant below), B is
“Bandana Man” (as he has been called throughout these proceedings), and C is an
unfortunate Polish careworker, killed on her way home from work.
68. Although the facts of this case are more fully described in Lord Phillips’
judgment, the appeal to my mind must necessarily be decided by reference to the
bare scenario already outlined, not the many surrounding details that can all too
easily obscure rather than clarify the real issue arising. And to my mind the allimportant consideration here is that both A and B were intentionally engaged in a
potentially lethal unlawful gunfight (a “shoot-out” as it has also been described) in
Page 26
the course of which an innocent passerby was killed. The general public would in
my opinion 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 (which,
indeed, it would not always be possible to determine). Is he alone to be regarded as
guilty of the victim’s murder? Is the other gunman really to be regarded as
blameless and exonerated from all criminal liability for that killing? Does the
decision of the Court of Appeal here, allowing A’s appeal against his conviction
for murder, really represent the law of the land?
69. To my mind the answer to these questions is a plain “no”. Realistically this
case is indistinguishable from the succession of authorities establishing criminal
liability on the part of anyone who willingly involves himself in the use of
unlawful violence between protagonists intent on killing or seriously injuring each
other, be they duellers, prize-fighters or sado-masochists – see respectively R v
Young & Webber (1838) 8 C & P 644, R v Coney (1882) 8 QBD 534 and R v
Brown (Anthony) [1994] 1 AC 212. It is the very purpose of those engaging in
these various activities that injuries will occur. The suggestion that certain of the
perpetrators of such consensual violence, merely because they are also its
prospective victims, cannot be liable for it, whether as principals or accessories by
virtue of the decision in R v Tyrrell [1894] 1 QB 710 (discussed by Lord Phillips
and Lord Judge at para 18 of their judgment), cannot be right. The principle
underlying criminal liability for duelling, prize-fighting and so forth is not to be
understood simply as the protection of those most directly at risk of the injuries
intended. Rather it is the protection of society generally from the damaging
consequences of such injuries and the discouragement of violent conduct as a
whole. Another powerful illustration of the principle (discussed by Lord Phillips
and Lord Judge at para 52) is the law with regard to suicide (modified although
that now is).
70. Such being the rationale for criminal liability in this line of cases, how
could the principle not encompass also the present case? Insofar as there are
factual differences between this case and an old-fashioned duel – most notably the
absence here of the civilities and formalities characterising a duel and the spur of
the moment nature (if such it was) of the decision here to engage in a gunfight (ie
to shoot and, inevitably, be shot at) – none of these suggest any lesser criminality
for whatever injuries may result than in the case of a duel itself. Quite the contrary,
indeed. The public interest in criminalising the violence engaged in is yet more
obvious: here there were others about so that the risk of harm was by no means
confined merely to the protagonists themselves.
71. For my part I am not disposed to analyse A’s liability for C’s murder here
in accessory terms – as the aider or abetter, counsellor or procurer of B’s attempt
to kill him (A himself) whose liability for C’s death thus arises, Tyrrell
constituting no obstacle, under the doctrine of transferred malice. Rather it seems
Page 27
to me that A is liable for C’s murder as a principal – a direct participant engaged
by agreement in unlawful violence (like a duel, a prize-fight or sado-masochism)
specifically designed to cause and in fact causing death or serious injury. But
whichever analysis is adopted, A’s liability for C’s murder seems to me clear and I
would regard our criminal law as seriously defective were it otherwise.
72. Does it follow that criminal responsibility for death would attach as widely
as was envisaged by the Court of Appeal in this case, and which so plainly
concerned them as a matter of policy (see paras 74 and 75 of the judgment below,
cited in full by Lord Phillips and Lord Judge at para 28 of their judgment)? In my
judgment not. In the scenario there described it could not be said, as here clearly it
can, that the very purpose of such a fight is that death or serious injury shall result.
73. For these reasons I too would answer the certified question in the
affirmative, allow this appeal and restore the respondent’s conviction for murder.
LORD CLARKE
74. Lord Phillips and Lord Judge have set out the facts in some detail. I shall
not therefore repeat them.
75. Lord Brown says at para 68 that the all-important consideration here is that
both the respondent and Bandana Man were intentionally engaged in a potentially
lethal unlawful gunfight or shoot-out, in which each intended to kill or seriously
injure the other. I agree that there was evidence upon which the jury could so
conclude. It is not in dispute that if they had agreed to fight a duel with guns and
either had inadvertently shot and killed a passer-by in the course of the duel they
would both be guilty of murder. It follows, as I see it, in agreement with Lord
Phillips, Lord Judge and Lord Brown, that if the respondent and Bandana Man
agreed to the shoot-out, they were both guilty of murder, even though the victim
was killed by a shot fired by Bandana Man and not by the respondent and even
though Bandana Man intended to kill or seriously injure the respondent who was
the other party to the agreement. In so far as the trial judge, Cooke J, reached a
different conclusion, I respectfully disagree.
76. As I see it, this analysis does not depend upon a conclusion that the
respondent was aiding, abetting, counselling or procuring Bandana Man but simply
on the proposition that the victim was shot and killed in the course of the
respondent carrying out the agreement between the two men as principals to shoot
and be shot at, just as in a duel. In a passage quoted by Lord Phillips and Lord
Judge at para 21 the trial judge, Cooke J, rejected the submission that the
Page 28
respondent actively encouraged Bandana Man to shoot at him. He concluded that,
by shooting at Bandana Man, the respondent might have provoked further firing
but he did not encourage it. I agree that there is a distinction in principle between
provoking a person to do something and encouraging or aiding and abetting him to
do it.
77. The question is whether the judge directed the jury correctly. That depends
upon the language he used. The relevant passage is quoted by Lord Phillips and
Lord Judge at para 23. The whole passage is important but the critical parts seem
to me to be these:
“Where a criminal offence is committed by two or more people, each
of them may play a different part in that offence, but if they are in it
together as part of a joint plan or joint agreement to commit it, each
is guilty of the planned offence.
The words ‘plan’ or ‘agreement’ that I have just used do not mean
that there has to be any formality about it. An agreement to commit
an offence may arise on the spur of the moment. Nothing needs to
be said at all. It can be made with a nod or a wink or just a knowing
look or by taking the first step in committing an offence in which the
other person then joins, so that it can be inferred from their
behaviour.
…
Now here it is said by the prosecution that Bandana Man and the
defendant planned to use unlawful violence towards another by
having a shoot-out, whether that plan was made beforehand and the
meeting was pre-arranged or was made on the spur of the moment
when they saw each other and fired at each other from the steps and
the car respectively.
…
If you are sure that Bandana Man and the defendant joined together
to commit such unlawful violence by having a gunfight, whether preplanned or whether on the spur of the moment on the top of the steps
and the side of the car, and that this joint enterprise came into being
before Magda was killed by a shot from Bandana Man, then the
defendant would be guilty of murder also, along with Bandana Man,
provided the other requirements are satisfied.
So if you are sure that Bandana Man and the defendant were in a
joint enterprise to cause an affray, to use unlawful violence against
Page 29
each other by having a gunfight and by firing at each other, whether
this joint enterprise was the result of a pre-planned meeting or arose
on the spur of the moment when they saw each other, and that in the
course of that joint enterprise fight, Magda was murdered by
Bandana Man on the basis of transferred malice, as I have explained
it to you, and that the defendant realised – and the prosecution say
that he must have realised — that in the course of their joint
enterprise gunfight, Bandana Man might kill with the requisite
intention for murder, then the defendant would also be guilty of
murder.”
78. As Lord Phillips and Lord Judge have explained, the judge had ruled that it
was open to the jury to find that the respondent and Bandana Man were engaged
on a joint enterprise to commit an affray and that, if the jury found that the
respondent foresaw that Bandana Man might shoot and kill an innocent passer-by
this would found a verdict of murder on the part of the respondent. I agree with
Lord Phillips and Lord Judge (at para 42) that no issue of what they call parasitic
accessory liability could arise here because it cannot be said that the two
protagonists had a joint intention to commit violence of a type that fell short of the
violence committed. Either they had no common intention, or the common
intention was to have a shoot-out, which involved each necessarily accepting that
the other would shoot at him with the intention to kill or cause serious injury. It
was thus open to the jury to find that there was an agreement to that effect which
may have been made on the spur of the moment but was in any event made before
Bandana Man shot and killed the victim, Miss Pniewska.
79. My only concern has been whether, in the light of the judge’s ruling, he
intended to direct the jury that they could convict if the common intention fell
short of an intention to shoot and be shot at. However, I agree with the conclusion
of Lord Phillips and Lord Judge at para 57 that it is not realistic to think that the
jury could have found such a common intention and with their conclusion at para
58 that the direction the judge in fact gave was an unequivocal direction that the
jury could only convict if they were sure that the protagonists had formed a mutual
plan or agreement to have a gun fight in which each would attempt to kill or
seriously injure the other. It follows that I would not accept the conclusions of the
Court of Appeal to the contrary.
80. At paras 55 to 60 Lord Phillips and Lord Judge return to the relevance of
aiding and abetting. For the reasons I have given, I do not think that this is a case
of aiding and abetting. It is a case of an agreement to shoot and be shot at just like
the agreement between the principal protagonists to a duel. It does not seem to me
that any assistance is to be gained by a consideration of the position of the seconds
at a duel or of those present at a duel or a prize fight.
Page 30
81. In reaching these conclusions, I entirely agree with Lord Brown’s
conclusions at paras 69 to 71. Like him, I am not disposed to analyse the
respondent’s liability for murder in accessory terms but as a principal to a joint
enterprise (that is an agreement) to engage in unlawful violence specifically
designed to cause death or serious injury, where death occurs as a result. I would
be inclined to describe this as a form of principal and not secondary liability, but if
it is a form of secondary liability, so be it. I also agree with Lord Brown that such a
conclusion is consistent with public policy and, for the reasons he gives at para 72,
does not extend criminal responsibility for death as widely as the Court of Appeal
envisaged at paras 74 and 75 of their judgment.
82. For these reasons, I too would allow the appeal and restore the respondent’s
conviction for murder.
83. By way of postscript I would like to mention another possible basis of
liability for murder which was touched upon in argument. It arises out of a
consideration of the decision of the Court of Appeal in R v Pagett (1983) 76 Cr
App Rep 279 to which Lord Judge drew attention in the course of the argument. It
appears to me to be at least arguable that it was or would have been open to the
jury to conclude that one of the effective causes of the death of the victim was the
respondent shooting at Bandana Man. This is on the basis that it provoked (or
caused) Bandana Man to shoot back with intent to kill or cause serious harm to the
respondent as a result of which the victim was shot and killed. This analysis does
not depend upon the respondent and Bandana Man being parties to a joint
enterprise.
84. The argument to the contrary would be that the sole cause of the death of
the victim was that she was shot by Bandana Man and that the fact that he may
have been returning fire directed at him by the respondent is irrelevant. The
argument would be that, even if Bandana Man would not have shot and killed the
victim if he had not been shot at by the respondent, the deliberate and criminal act
of Bandana Man in shooting back and killing the victim was a novus actus
interveniens which broke the chain of causation between the shots fired by the
respondent and the death of the victim.
85. In Pagett the appellant shot at police officers who were attempting to arrest
him for various serious offences. The appellant had with him a 16 year old girl
who was pregnant by him. Against her will he used her body to shield him from
any retaliation by the officers. The officers returned his fire and as a result the girl
was killed. The appellant was charged with her murder. The trial judge left both
murder and manslaughter to the jury. The appellant was acquitted of murder but
convicted of manslaughter. In the Court of Appeal, which comprised Robert Goff
Page 31
LJ and Cantley and Farquarson JJ, the appellant challenged the judge’s directions
on causation. The judgment of the court was given by Robert Goff LJ.
86. It was held that it was for the judge to direct the jury as to the relevant
principles relating to causation and then leave it to the jury to decide whether or
not, in the light of those principles, the relevant causal link had been established.
In the rare case in which it was necessary to direct the jury’s minds to the question
of causation, it was usually enough to direct them simply that in law the accused’s
act need not be the sole cause, or even the main cause, of the victim’s death, it
being enough that the act contributed significantly to that result.
87. However, Robert Goff LJ said this at p 288:
“Occasionally … a specific issue of causation may arise. One such
case is where, although an act of the accused constitutes a causa sine
qua non of (or necessary condition for) the death of the victim,
nevertheless the intervention of a third person may be regarded as
the sole cause of the victim’s death, thereby relieving the accused of
criminal responsibility. Such intervention, if it has such an effect, has
often been described by lawyers as a novus actus interveniens. We
are aware that this time-honoured Latin term has been the subject of
criticism. We are also aware that attempts have been made to
translate it into English; though no simple translation has proved
satisfactory, really because the Latin term has become a term of art
which conveys to lawyers the crucial feature that there has not
merely been an intervening act of another person, but that that act
was so independent of the act of the accused that it should be
regarded in law as the cause of the victim’s death, to the exclusion of
the act of the accused. At the risk of scholarly criticism, we shall for
the purposes of this judgment continue to use the Latin term.”
88. The decision in Pagett is however instructive: see pp 291-292. The judge
directed the jury that, in order to convict the appellant, it was necessary that they
should find both that he fired at the police officers and thereby caused them to fire
back and that he used the girl as a shield by force and against her will. The court
held that that direction was generous to the appellant because either of those acts
would have constituted the actus reus, whether of murder or manslaughter causing
the victim’s death. So, as Robert Goff LJ put it at p 291, if the jury were sure that,
if the victim was killed by a shot fired from the gun of a police officer who, acting
in reasonable self-defence, fired his gun in response to a lethal attack by the
appellant, it would be open to them to convict him of murder or manslaughter as
the case may be.
Page 32
89. This case is not on all fours with Pagett because Bandana Man was not
acting in reasonable self-defence. However, once the respondent became aware
that Bandana Man had a gun and was willing to use it, even assuming that there
was no joint enterprise, it was undoubtedly foreseeable that, if the respondent
continued shooting at Bandana Man, he would shoot back with intent to kill him or
cause serious harm. Indeed, the jury’s verdict shows that the respondent foresaw
precisely that. In these circumstances, it was open to the jury to conclude that the
respondent’s firing at Bandana Man was a cause of the latter shooting back. It was
the very thing that might have been expected.
90. There are of course many cases in the books which consider the correct
approach to the suggestion that there has been a novus actus interveniens. Many of
them are claims in tort but the principles seem to me to be much the same. I refer
only to the well-known judgment of Lord Wright in the Court of Appeal in The
Oropesa [1943] P 32. After noting at p 37 that human action does not itself sever
the chain of causation and referring to a number of the cases, Lord Wright said at p
39:
“To break the chain of causation it must be shown that there is
something which I will call ultroneous, something unwarrantable, a
new cause which disturbs the sequence of events, something which
can be described as either unreasonable or extraneous or extrinsic. I
doubt whether the law can be stated more precisely than that.”
To my mind, the decision by Bandana Man to shoot at the respondent was not
extraneous or ultroneous but the very thing that the respondent must have
expected.
91. The mere fact that the immediate cause of the death was a criminal and
deliberate act on the part of Bandana Man does not as a matter of law break the
chain of causation: see eg, in the context of tort, Gray v Thames Trains Ltd [2009]
EWHL 33, [2009] 1 AC 1339 per Lord Hoffmann at paras 27-29 and Corr v IBC
Vehicles Ltd [2008] UKHL 13, [2008] AC 884. All depends upon the
circumstances of the particular case. In these circumstances, as I see it, the case
could have been left to the jury on the basis that it was open to them to hold that
the respondent was guilty of murder if they were sure that his act in shooting at
Bandana Man was a cause of Bandana Man shooting at him with intent to kill him
or cause him serious harm and the victim was killed as a result. It seems to me to
be very likely that the jury would have concluded, as Robert Goff LJ put it, that the
respondent’s act in shooting at Bandana Man contributed significantly to Bandana
Man shooting at him with intent to kill or seriously injure him and thus to his
killing the victim.
Page 33
92. However, since the case was not put to the jury on this basis, I would not
allow this appeal on the basis of causation but on the basis discussed in paras 74 to
82 above.
LORD DYSON
93. The facts have been fully set out by Lord Phillips and Lord Judge. Several
possible bases for upholding the respondent’s conviction call for consideration.
The first is the basis on which the case was left by the judge to the jury and on
which they convicted. This is that the respondent and Bandana Man participated in
the commission of an affray and that in the course of it Bandana Man committed
an offence (murder) which the respondent had foreseen he might commit. Like
Lord Phillips and Lord Judge, I shall adopt Sir John Smith’s phrase of “parasitic
accessory liability” for this. The second is that the respondent aided and abetted
Bandana Man to shoot at him (by encouraging him to do so). This is a basis on
which Lord Phillips and Lord Judge would uphold the conviction, although in his
ruling the judge said that his view of the facts was that the respondent did not
encourage Bandana Man to shoot at him and that accordingly he would not leave
the issue of aiding and abetting to the jury. The third basis is that the respondent
and Bandana Man were liable as joint principals for the murder. This is the basis
on which Lord Brown and Lord Clarke would uphold the conviction. Lord Clarke
has suggested a fourth possible route, namely that the respondent caused Bandana
Man to shoot at him and therefore to kill Magda Pniewska.
Parasitic accessory liability
94. The ingredients for parasitic accessory liability are that two parties
participate in the commission of crime A and, in the course of committing it, D1
commits crime B which D2 foresees that he might commit. The Court of Appeal
rejected this as a basis for upholding the conviction in the present case on the
grounds that it was necessary to show that the respondent and Bandana Man
agreed to commit the affray “and shared a common purpose in committing it”
(para 51). They said (para 59) that it was “not realistic to say that they acted in
concert to cause fear; they acted independently and antagonistically in a manner
which did so. Absent a shared purpose to shoot and be shot at, the submission
made by the appellant was correct that there was no room on the facts for any other
common purpose. The jury was never asked to confront the question whether the
shared purpose was not only to shoot, but to be shot at.”
95. I agree with the comments by Professor Ormerod in R v Gnango [2011]
Crim LR 151 and by Professor Virgo in “The doctrine of joint enterprise liability”
Page 34
Archbold Review, Issue 10, 14 December 2010 that, in order to establish parasitic
accessory liability, there was no need for the prosecution to prove that there was a
common purpose that each man intended to shoot and to be shot at. It was
sufficient to establish a common purpose to commit an affray. Consequently, a
common purpose to fight or threaten a fight in a public place would be a sufficient
common purpose to engage the parasitic accessory liability principle.
96. But at paras 42 and 43, Lord Phillips and Lord Judge have identified a
different flaw in the parasitic accessory liability argument. They say that there is
no room for the application of this principle in the present case, because on the
facts of this case it is artificial to treat the intention to have an affray as separate
from the intention to have a potentially homicidal shooting match. I agree.
97. There is no reason in general why the parasitic accessory liability principle
cannot be applied where crime A is affray and crime B is murder. All that is
required is proof of (i) a common purpose to commit an affray which is shared by
D1 and D2 in the sense that they have agreed to commit the offence and (ii) a
murder committed by D1 in the course of the affray the commission of which is
foreseen as a possibility by D2. Suppose, for example, that a group of youths is
involved in a fist fight in a public place and they are all aware that one member of
the group is armed with a knife. Let us further suppose that they are all guilty of
causing an affray and that the youth who has the knife uses it with the intention to
kill or cause really serious harm to kill another member of the group. All the
members of the group who foresee that he might use the knife to commit a murder
would also be liable for the murder. The fact that they were also guilty of an affray
would be no bar to their liability for murder.
98. On the facts of this case, however, the Crown chose to put their case on the
basis that the affray was the use of unlawful violence in a public place “by having
a gun fight and by firing at each other” (summing up p 15-16). I agree with Lord
Phillips and Lord Judge that the way that the Crown chose to put its case left no
room for the application of the parasitic accessory liability principle here.
Aiding and abetting
99. The Crown sought to persuade the judge to leave the case to the jury on the
alternative basis that, by shooting at Bandana Man, the respondent encouraged him
to shoot back at him and fire the fatal shot; and that he was guilty of the murder of
Ms Pniewska as an accessory and by application of the transferred malice
principle. The judge’s view of the facts was that this was not a route open to the
jury to finding the respondent guilty of murder. As he said in his ruling, “in reality
on the evidence, [the respondent] fired at Bandana Man in the hope of killing him
Page 35
or causing him grievous bodily harm, frightening him, or arguably, in self-defence.
He cannot be said to have encouraged the other to fire back, whatever the order of
shots as the jury might ultimately find them to be. He might have provoked further
firing, but he did not encourage it.”
100. Despite the judge’s declared intention (as expressed in his ruling) not to
leave aiding and abetting to the jury, Lord Phillips and Lord Judge say that a basis
on which the jury’s verdict can be upheld is that they must have found that the
respondent aided and abetted Bandana Man to shoot at him with intent to kill or
cause really serious harm. At para 59 they draw an analogy with a duel and a prize
fight. If the jury’s view of the facts was that this case was indeed analogous to a
duel (ie that the respondent and Bandana Man had a common purpose to shoot and
be shot at), then I agree with the reasoning of Lord Phillips and Lord Judge. It is
important to distinguish between a combat which is analogous to a duel and a mere
fight. An essential element of the former is an agreement by the combatants to
fight each other. They encourage each other to fight. The judge was right to
distinguish between encouragement and provocation. If A shoots back at B
because he has been provoked by B’s shooting to do so, that is very different from
saying that A shoots back at B because he has been encouraged to do so pursuant
to an agreement to have a shoot out.
101. The question is whether the jury must have decided that the respondent and
Bandana Man had a common purpose to shoot and be shot at and that by their
words and/or conduct they encouraged each other to that end. The Court of
Appeal’s view of the facts was that the respondent and Bandana man had no such
common purpose: in other words, that this was not analogous to a duel. That was
also the view of the judge as expressed in his ruling. But what matters, of course,
is what the jury decided. That can only be determined by a consideration of their
verdict in the light of the summing up, which must be interpreted in a sensible way
and without regard to any ruling that preceded it (of which the jury would have
been ignorant). What counts is what the judge said in his summing up, and not
what he intended to say or what he intended the words that he used to mean. But
where it is suggested that a summing up bears a meaning which differs from what
the judge intended, it must be scrutinised with particular care.
102. In his summing up, the judge did not direct the jury on aiding and abetting.
He did not ask them in terms to consider whether, by shooting back, the
respondent encouraged Bandana Man in turn to shoot back at him with intent to do
so. In view of his ruling, these omissions on the part of the judge were not by an
oversight: they were quite deliberate. But the question is whether, although the
issue of aiding and abetting by encouragement was not before the jury in terms,
they showed by their verdict on the issue that was before them (parasitic accessory
liability) that they were sure that the respondent and Bandana Man had a common
Page 36
purpose to shoot and be shot at and encouraged each other to give effect to that
purpose.
103. This question has caused me considerable anxiety, not least because (i) this
was a murder charge, (ii) a finding of aiding and abetting by encouragement did
not accord with this careful judge’s assessment of the facts and (iii) he did not
direct the jury explicitly on the aiding and abetting issue. But I have been
persuaded by the reasoning of Lord Phillips and Lord Judge that the jury must
nevertheless have been satisfied that there was an agreement between the
respondent and Bandana Man to shoot and be shot at and that they encouraged
each other to carry that agreement into effect. The jury were directed that they had
to be sure that the respondent and Bandana Man planned to use unlawful violence
towards each other “by having a shootout whether that plan was made beforehand
and the meeting was pre-arranged or was made on the spur of the moment when
they saw each other and fired at each other from the steps and the car
respectively”. The judge gave the standard direction for joint enterprise (in the
context of parasitic accessory liability) that the offence (in this case affray by
gunfight) had to be the joint commission of an offence by two or more people who
are “in it together as part of a joint plan”. In my view, a shootout pursuant to a
plan must mean an exchange of fire pursuant to an agreement to shoot and be shot
at; and persons who agree to shoot at each other must by virtue of their agreement
intend to encourage each other to do so. It differs from a simple exchange of fire.
Nor is it relevant that each of the participants hopes that his shot will prove fatal
and that there will be no return of fire. The fact that the jury convicted the
respondent of the murder of Ms Pniewska following the judge’s directions must
mean that, if they had been asked in terms whether the respondent and Bandana
Man (i) agreed to shoot and be shot at and (ii) thereby encouraged each other to
that end (intending to do so), they would have answered both questions in the
affirmative. In other words, the jury showed by their verdict that they considered
that this was analogous to a duel.
104. I would, therefore, uphold 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.
Liability as a joint principal
105. This is the route favoured by Lord Brown and Lord Clarke and accepted as
an alternative by Lord Phillips and Lord Judge. They say that the respondent is
liable by reason of his participation “by agreement in unlawful violence
specifically designed to cause and causing death or serious injury”. For the reasons
that I have given, I am persuaded that the jury must have been sure that Bandana
Page 37
Man and the respondent exchanged fire pursuant to an agreement to have a shoot
out, ie an agreement to shoot and be shot at. That is why in my view Lord Phillips
and Lord Judge are right to say that in this case the difference between holding the
respondent liable as a principal to an agreed joint activity rather than as an
accessory is not a difference of substance. Either way, the Crown had to prove that
the respondent and Bandana Man agreed to shoot and be shot at with the necessary
intent. It follows that, for the reasons I have given, the jury must have been sure
that the respondent participated with Bandana Man in an agreed shoot out or
agreement to shoot and be shot at with the necessary intent. Accordingly, if the
jury had been asked whether the respondent was guilty of the murder of Ms
Pniewska on the basis that he had acted in concert with Bandana Man in shooting
at each other pursuant to an agreement to shoot and be shot at, in my view, in the
light of the terms of the summing up, they would have answered that question in
the affirmative. I would, therefore, uphold the conviction on this basis too.
Causation
106. Lord Clarke has suggested, as an alternative, that the respondent caused
Bandana Man to shoot back at him and thereby contributed to the death. This way
of putting the case was not left to the jury and causation was a matter for the jury
to determine. Furthermore, we heard very little argument on this point. It seems to
me that, if Bandana Man’s act of shooting at the respondent was a free, deliberate
and informed act, it broke the chain of causation between the respondent’s
shooting at him and his shooting and killing Ms Pniewska: see R v Kennedy (No 2)
[2007] UKHL 38; [2008] AC 269. As Professor Ormerod points out in his article
(loc cit), it might be argued that Bandana Man’s act of shooting was not a free,
deliberate and informed act because he was acting in self-defence. But that seems
very difficult on the facts of this case. It might also be argued that, even if Bandana
Man was acting in a free, deliberate and informed manner, that is irrelevant if he
and the respondent were acting in concert: see R v Latif [1996] 1 WLR 104, 115.
None of these issues was explored by the jury. I agree with Lord Clarke that we
cannot uphold the conviction on the basis that the respondent caused Bandana Man
to fire the fatal shot.
Conclusion
107. I would, therefore, allow the appeal and restore the conviction. In doing so,
I wish to emphasise that the judge is not to be criticised for directing the jury in the
way that he did. This was a very difficult case. I would add that, although I have
disagreed with the analysis of the Court of Appeal, it contains a most useful
discussion of some of the complex issues that arise in this area of the law.
Page 38
LORD KERR
108. The respondent to this appeal, Armel Gnango, was convicted of the murder
on Tuesday, 2 October 2007, of a 26 year old Polish care worker, Magda
Pniewska. She had been walking home from her place of employment when she
was killed by a single shot to the head. She was an entirely innocent young
woman. Her death is an appalling tragedy.
109. The shot which killed Ms Pniewska was fired by a person known
throughout the proceedings by the somewhat unfortunate soubriquet of ‘Bandana
man’. I shall refer to him as ‘B’. He and Gnango had exchanged fire and it was in
the course of this that Ms Pniewska was shot. In their judgment, Lord Phillips and
Lord Judge have outlined all the relevant facts and I need not dilate further on
them. The Court of Appeal quashed the murder conviction. It certified a point of
law of public general importance. Its terms have been set out by Lord Phillips and
Lord Judge in para 1 of their judgment and it is unnecessary to repeat them.
110. Various bases on which Gnango might – or should – be found guilty of the
murder of Ms Pniewska have been canvassed in the course of argument and in the
judgments of the other members of the court. I have had the great advantage of
reading these judgments in draft form.
Joint affray
111. In paras 32-35 of their judgment, Lord Phillips and Lord Judge have traced
the evolution of the statutory offence of affray from its common law origins. As he
has pointed out, the Law Commission had recommended that the common law
offence of affray should be preserved in an enactment and had suggested that it
should be defined as the use or threat of unlawful violence by two or more persons
against each other or by the use or threat of such violence by one or more persons
against another. Although the government expressed satisfaction with this
definition, there was a significant omission in the final form of the provision that
appeared in the legislation from that proposed by the Law Commission. It
contained no reference to the use or threat of violence by two persons against each
other. Instead, section 3(1) dealt only with the basis of a single individual’s guilt.
A person was to be guilty if he used or threatened unlawful violence towards
another.
112. Lord Phillips and Lord Judge consider that the use of the words “unlawful
violence” in subsection (2) of section 3, if given their natural meaning, would lead
to the conclusion that two defendants could only be jointly liable of affray if they
Page 39
join in using violence against another. But it seems to me that this conclusion is the
consequence not so much of the use of the words “unlawful violence” in
subsection (2) as the unavoidable result of the requirement in subsection (1) that,
for a person to be guilty of affray, he must have offered violence to another.
Therefore, I have difficulty with Lord Phillips’ and Lord Judge’s conclusion that
the joint offence of affray can be founded on the common product of individual
conduct, if this is to be applied to the use of violence by two persons against each
other. Using or threatening violence towards another must mean that in the case of
a joint offence of affray the violence of those guilty of it is directed towards
another person or other persons, not against each other.
113. This may produce an anomalous result, as Lord Phillips and Lord Judge
have suggested, but it seems to me to be the inescapable conclusion that section
3(1) impels. For a joint offence of affray to occur, the person represented by the
word “another” in s 3(1) of the 1986 Act must be someone other than the person
offering the violence. It may be correct, as Lord Phillips and Lord Judge have
stated (in para 38), that there does not need to be a common intention for a joint
offence of affray but the activity comprising the actus reus of the offence, to be
capable of giving rise to joint liability, must be directed towards the same target.
This is the unavoidable consequence of the stipulation that the violence must be
used or threatened to another. On this analysis, Gnango and B committed separate
offences of affray. A joint affray is not, in my opinion, available as a source of
liability for Gnango.
114. In any event for parasitic accessory liability to arise, Gnango and B would
have to have a common intention to commit an affray, if affray is the crime on
which Gnango and B are to be said to have jointly embarked. Whether or not a
common intention is required for a joint offence of affray, it is most certainly
required for parasitic accessory liability. Even if it were possible, therefore, for
them to be convicted of joint affray without a common intention to commit that
offence, for the offence to provide the basis of parasitic accessory liability, it
would have to be proved that they had a shared intention. As Lord Phillips and
Lord Judge stated in para 38, the Court of Appeal was right to hold that this form
of liability depends on the existence of a common unlawful enterprise or purpose.
Although I disagree with Lord Phillips and Lord Judge that there can be a joint
affray based on violence offered by two protagonists to each other, I do agree with
him that participation in a joint affray cannot automatically constitute a foundation
for parasitic accessory liability. The essence of parasitic accessory liability is that
there is a common purpose and in the course of furthering that common purpose,
the principal goes beyond what was agreed but the secondary participant foresaw
the possibility of this occurring. The sine qua non of parasitic accessory liability,
therefore, is the existence of an common purpose.
Aiding and abetting
Page 40
115. Lord Phillips, Lord Judge and Lord Dyson have concluded that, although it
was not left to the jury by the trial judge, the effect of their verdict is that Gnango
was guilty because he aided and abetted B to fire at him. This was on the basis that
both shared a common intention to shoot at one another. In particular, each
intended to shoot at the other and to be shot at by him. The Court of Appeal
concluded that the jury was “never asked to confront the question whether the
shared common purpose was not only to shoot, but to be shot at” (para 59 of the
Court of Appeal’s judgment). This is unquestionably correct. The jury was not
invited at any time during the judge’s carefully composed charge to address the
question whether the shared intention included what seems to be the supremely
important element of the avowed aiding and abetting of this offence – the
agreement to be shot at.
116. The judge had refused to allow aiding and abetting to go to the jury because
he considered that it could not reasonably be concluded that Gnango had
encouraged B to fire at him. The mens rea of aiding and abetting is an intention by
one’s act to assist the principal in the commission of his offence. Thus at para 18-
18 of Archbold 2011 edition:
“To establish aiding and abetting on the basis of encouragement, it
must be proved that the defendant intended to encourage and wilfully
did encourage the crime committed. Mere continued voluntary
presence at the scene of a crime, even though it was not accidental,
does not of itself necessarily amount to encouragement; but the fact
that a person was voluntarily and purposely present witnessing the
commission of a crime and offered no opposition, though he might
reasonably be expected to prevent it and had the power to do so, or at
least express his dissent, might in some circumstances afford cogent
evidence upon which a jury would be justified in finding that he
wilfully encouraged and so aided and abetted, but it would be purely
a question of fact for the jury whether he did so or not: R v Clarkson,
55 Cr App R 445, Ct-MAC.”
117. Since mere presence at the scene of a crime can in certain circumstances be
enough to justify a finding of guilt, it is perhaps difficult to see why Gnango’s
remaining at the scene and firing the gun at B could not amount, in law, to
encouragement. It seems likely, however, that the judge considered that the notion
of someone encouraging another to fire at him was so at odds with common
experience as to be unbefitting of the jury’s consideration as a possible basis of
liability for in his ruling he observed: “it cannot be said, in my judgment, that the
defendant actively encouraged [B] to shoot at him, and even if he did, it would be
a real oddity for a victim of an attempted murder to be a secondary party to that
attempt”. Be that as it may, the above passage from Archbold makes clear that, to
be satisfied that Gnango intended to assist or encourage B to shoot at him, the jury
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would have to address directly not only the question whether his actions did
encourage B to do so, but also whether he intended that B should do so – see also
Archbold at 17-67, “what needs to be proved is an intention to render assistance to
another”. If the jury was not invited to consider whether Gnango had that
intention, the conclusion that their verdict admits of no view other than that
Gnango intended to assist B in firing at him is somewhat startling and one which
could only be reached after very careful examination of possible alternative
explanations for the verdict.
118. The judge told the jury that the prosecution case was that there was a plan
on the part of Gnango and B to have what he described as a “shoot-out”:
“Now here it is said by the prosecution that Bandana Man and the
defendant planned to use unlawful violence towards [one] another by
having a shoot-out, whether that plan was made beforehand and the
meeting was pre-arranged or was made on the spur of the moment
when they saw each other and fired at each other from the steps and
the car respectively.”
119. A little later in his charge he gave this critical direction:
“If you are sure that Bandana Man and the defendant joined together
to commit such unlawful violence by having a gunfight, whether preplanned or whether on the spur of the moment on the top of the steps
and the side of the car, and that this joint enterprise came into being
before Magda was killed by a shot from Bandana Man, then the
defendant would be guilty of murder also, along with Bandana
Man.”
120. At para 58 Lord Phillips and Lord Judge have said that this amounted to an
unequivocal direction that the jury could only convict if they were satisfied that
Gnango and B had planned to have a gun fight in which each would attempt to kill
or seriously injure the other. He suggests that if the jury was satisfied of this, it
meant in law that both were party not merely to his own attempt to kill or seriously
injure the other but to the other’s attempt to kill or seriously injure him. Lord
Dyson expressed essentially the same view at para 101 where he said:
“In my view, a shootout pursuant to a plan must mean an exchange
of fire pursuant to an agreement to shoot and be shot at; and persons
who agree to shoot at each other must by virtue of their agreement
intend to encourage each other to do so.”
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121. The terms of any “plan” are critical to any conclusion that the parties to it
must be taken to have encouraged each other to shoot. But an anterior question
must be addressed. Can it be said that solely because there was an exchange of
fire, this must be on foot of a plan? Agreement to shoot it out with an opponent, if
reached in advance, would be such a plan although there is no evidence that this is
what happened here. But where there has been what has been described as a
“spontaneous agreement” to engage in a shoot-out, the question arises whether this
can truly be said to be the product of an agreement in any real sense. Is it not at
least as likely to be the result of a sudden, simultaneously reached, coincident
intention by the two protagonists to fire at each other? I do not consider that
because there was a shoot-out (whatever that term may mean) and because the jury
were asked to consider that Gnango and B “joined together … to commit …
unlawful violence”, by returning a verdict of guilty, the jury must be taken to have
concluded that there was a plan in the sense of an agreement between them.
122. But even if the jury’s verdict can be taken as evidence of their conclusion
that there had been a plan or agreement between Gnango and B, does it follow that
an element of that plan must be that they agreed to be shot at, as well as to shoot?
Agreeing to a shoot-out does not necessarily mean agreeing to be shot at. This is
particularly so where the plan takes the form of (and here it could only take the
form of) an instantaneous meeting of minds between Gnango and B on their first
catching sight of each other on the occasion of the gunfight. That type of situation
is quite different from a duel where participants meet at a pre-arranged place and
an appointed time. The essence of a duel conducted with firearms is that there
should be an exchange of fire. The parties to the duel anticipate – and may be said
to impliedly consent to – being fired on as well as firing. But there is no basis on
which to infer that such was the intention of the two protagonists here, much less
to conclude that the jury’s verdict can only be consistent with such implicit
intention on the part of Gnango and B. It is at least just as likely that neither agreed
to be fired on and that both hoped that they would avoid that unpleasant
eventuality by hitting the target with their own shot. Put shortly, when the only
material that the jury had to go on was that there was a shoot-out, it is, in my view,
impossible to conclude that the finding of guilt can only be explained on the basis
that it had been proved that there was a plan between Gnango and B to shoot and
be shot at.
123. Even if it were possible so to conclude, however, it does not follow that this
amounted to an intention on the part of Gnango or B to assist or encourage each
other to shoot. One might be alive to the very real risk that firing, if the target was
not hit, would prompt return fire, but that is a significantly different thing from
saying that this was encouragement to fire back. Being prepared to run the risk
does not equate with encouraging an opponent to fire at you. Before, therefore, one
could be confident that the jury’s verdict meant that they had found it established
that Gnango had intended to encourage B to fire, it would have been necessary for
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them to receive directions about that vital component of aiding and abetting. As
the judge said, when ruling that he would not allow this to go to the jury as a
possible basis of liability, “on the evidence, the defendant fired at Bandana Man in
the hope of killing him or causing him grievous bodily harm, frightening him, or
arguably, in self-defence”. Being shot at was hardly likely to have been a desired
outcome on the part of Gnango. Intending to encourage B to fire at him was even
less likely.
124. This point was made by Graham Virgo in an article, “The Doctrine of Joint
Enterprise Liability”, on the Court of Appeal’s decision in this case which
appeared in Archbold Review 2010 Issue 10, p 6:
“… if the appellant had, by his act of shooting at the opponent,
encouraged him to shoot back, if the appellant had foreseen that the
opponent might shoot with the intention for murder and then the
opponent’s shot had accidentally hit and killed a third party, the
appellant could be guilty of murder as an accessory by virtue of the
transferred malice doctrine …
The only difficulty with this analysis relates to whether the
appellant’s shooting at the opponent could have been regarded as a
positive encouragement to shoot back. Did the appellant want the
opponent to shoot back at him or did he only want to kill or seriously
injure the opponent? This is why the Court of Appeal’s analysis of an
intent to shoot and be shot at was relevant, but it was relevant to
accessorial liability and not to the identification of a common
purpose. On the facts it would have been difficult to establish such
encouragement of the opponent to shoot back, but it is conceivable
that such encouragement could be identified if the appellant intended
some kind of duel.”
125. It is, of course, true that, in considering whether there was an intention to
encourage, intent must be clearly distinguished from desire or motive. In a trilogy
of cases, R v Moloney [1985] AC 905; R v Hancock [1986] AC 455; and R v
Woollin [1999] 1 AC 82 the House of Lords held that intention is not restricted to
consequences that are wanted or desired, but includes consequences which a
defendant might not want to ensue, but which the jury find (a) are the virtually
certain result of the defendant’s actions (barring some unforeseen intervention);
and (b) are consequences which the defendant appreciated were virtually certain to
occur. Before such an oblique intention could form the basis of a jury’s verdict, of
course, precise directions to this effect would have to be given. In the absence of a
specific direction on Gnango’s intention to encourage B to shoot at him, I do not
consider that the verdict of the jury can be upheld on the basis that it was founded
Page 44
on their conclusion that he either had the requisite intention or that the virtually
certain result of his firing at B was that he would return fire and that Gnango knew
that this was virtually certain to occur.
126. This is particularly so because there is an obvious explanation for the jury’s
verdict other than that they concluded that there had been a plan which included an
intention on the part of Gnango and B to encourage the other to shoot at him. The
judge had put to the jury that if they were satisfied that Gnango and B had
participated by agreement in an affray, in the course of which Gnango foresaw that
B might commit intentional grievous bodily harm or kill, he could be found guilty
on that account. For the reasons given by Lord Phillips, Lord Judge and Lord
Dyson, with which I agree, this form of parasitic accessory liability was not a basis
on which the jury could convict. But it seems to be likely in the extreme that this is
the basis on which they did convict. That being so, there was no occasion for them
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. Nor can their verdict be
considered to supply the necessary ingredients of liability on that basis.
Liability as a joint principal
127. It is important at the start of this discussion to recognise the clear distinction
that must be drawn between the concepts of joint principal liability and joint
enterprise. Joint principal offending is a species of primary liability. In Smith &
Hogan’s Criminal Law (2011) 13th ed the following definition of joint principals is
given: “D1 and D2 are joint principal offenders where each does an act which is a
cause of the actus reus”. Unlike the position in a joint enterprise, no common
purpose is required in order to render those who cause or contribute to a cause of
the actus reus guilty as joint principals. What is required is that each must
contribute by his own act to the commission of the offence with the necessary
mens rea.
128. By contrast, the doctrine of joint enterprise arises in situations where there
are two offences, the first being that which has been jointly embarked on and the
second the unplanned but foreseen offence committed by one of the participants
alone. It is therefore par excellence a species of secondary liability as Hughes LJ
explained in A, B, C and D (Joint Enterprise) [2010] EWCA Crim 1622; [2011]
QB 841 where he said at para 37:
“It is necessary to remember that guilt based upon common
enterprise is a form of secondary liability. The principle is that D2 is
implicated in the guilt of D1 not only for the agreed crime A but for
the further crime B which he foresaw D1 might commit in the course
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of A. This form of liability therefore arises only where D1 has
committed the further crime B.”
129. The two models are therefore, if not mutually exclusive, at least
conceptually distinct. To speak of joint principal offenders being involved in a
joint enterprise is, at least potentially, misleading. The essential ingredient for joint
principal offending is a contribution to the cause of the actus reus. If this is absent,
the fact that there is a common purpose or a joint enterprise cannot transform the
offending into joint principal liability.
130. The actus reus in this case was the killing of Ms Pniewska. To be guilty of
that offence as a joint principal, it would have to be shown that Gnango caused or
contributed to a cause of her death. With great respect to the views of Lord Brown
and Lord Clarke, it is not sufficient that he be shown to be engaged by agreement
in violence designed to cause death or serious injury. The crucial question is
whether he caused or contributed to the death of the victim. This is not an issue
which was put to the jury and a conclusion as to whether Gnango’s actions caused
or contributed to Ms Pniewska’s death cannot be inferred from their verdict.
131. In any event, major difficulties of proof lie in the way of a case that
Gnango’s actions were an effective cause of the killing of the victim. As a thesis it
depends on the proposition that B fired the fatal shot because he was caused to do
so by Gnango firing on him. That proposition faces the immediate problem that B
fired on Gnango first. It is, one might suppose, possible to assert that,
notwithstanding this, B’s continued firing at Gnango was caused by the latter’s
return of fire. But that claim encounters the difficulty that was identified by Lord
Bingham in R v Kennedy No 2 [2008] 1 AC 269 where he said at para 14:
“The criminal law generally assumes the existence of free will. The
law recognises certain exceptions, in the case of the young, those
who for any reason are not fully responsible for their actions, and the
vulnerable, and it acknowledges situations of duress and necessity,
as also of deception and mistake. But, generally speaking, informed
adults of sound mind are treated as autonomous beings able to make
their own decisions how they will act … Thus D is not to be treated
as causing V to act in a certain way if V makes a voluntary and
informed decision to act in that way rather than another. There are
many classic statements to this effect. In his article ‘Finis for Novus
Actus?’ [1989] CLJ 391, 392, Professor Glanville Williams wrote:
‘I may suggest reasons to you for doing
something; I may urge you to do it, tell you it will
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pay you to do it, tell you it is your duty to do it.
My efforts may perhaps make it very much more
likely that you will do it. But they do not cause
you to do it, in the sense in which one causes a
kettle of water to boil by putting it on the stove.
Your volitional act is regarded (within the
doctrine of responsibility) as setting a new “chain
of causation” going, irrespective of what has
happened before.’
In chapter XII of Causation in the Law, 2nd ed (1985), p 326, Hart &
Honoré wrote:
‘The free, deliberate, and informed intervention of
a second person, who intends to exploit the
situation created by the first, but is not acting in
concert with him, is normally held to relieve the
first actor of criminal responsibility.’
This statement was cited by the House with approval in R v Latif
[1996] 1 WLR 104, 115. The principle is fundamental and not
controversial.”
132. If B fired at Gnango first, it seems to me highly questionable (at least) that
Gnango’s returning fire caused B to fire again. The first shot surely betokened an
intention on the part of B to fire at and to hit Gnango, irrespective of whether
Gnango fired back. It might be said, to borrow the words of Professor Glanville
Williams, that Gnango’s firing on B made it much more likely that B would fire
again, but that is not enough to show that B was caused to fire because of
Gnango’s shot. I do not consider, therefore, that Gnango can be guilty of the
murder of Ms Pniewska as a joint principal.
Conclusion
133. I would dismiss the appeal.
