R. v. Gnango – Securing a Conviction in "Crossfire" Killings: Legal Precision vs. Policy more

CASE NOTES SECURING A CONVICTION IN “CROSSFIRE” KILLINGS: LEGAL PRECISION VS. POLICY R. v. Gnango [2011] UKSC 59, The Times, December 15, 2011 (December 14, 2011) United Kingdom Supreme Court Murder – Joint enterprise – Transferred malice A. The facts On October 2, 2007, a 26 year old woman – a Polish care worker, Magda Pniewska, returning home from the care home where she worked – walked through a car park in New Cross, South London. She was on the telephone to her sister. She was shot in the head and killed. The shot was fired in an exchange of fire in the car park between two gunmen, Gnango (17 years old) and another youth known only as “Bandana Man” (“B”). Neither shooter had been aiming at the victim: they had been shooting at each other. Upon arriving at the car park, Gnango had spoken to four people in a car, two of whom said he told them that “he had come to meet someone to handle some business. Shortly thereafter, B arrived on the scene and began to shoot at Gnango, who returned fire. Scientific evidence showed that the single bullet to the victim’s head had come from B’s gun, not Gnango’s. Although B was clearly guilty of murder under the doctrine of “transferred malice’,” he was never caught. Gnango was charged with and convicted of murder following trial. His conviction was overturned on appeal: the Court of Appeal held that “joint enterprise” liability for murder, the basis on which they considered his conviction to rest, could not arise on the facts. In considering the Crown’s appeal, the Supreme Court was asked to address the following question of general public importance: “If 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 D1 mistakenly kills V in the course of the fight, in what circumstances, if any, is D2 guilty of the offence of murdering V?”1 In this case note, the labels “D1” (primary defendant or offender) and “D2” (secondary, “indirect” offender), “V1” (intended victim) and “V2” (secondary, unintended victim) will be adopted, as appropriate. 1 299 300 Journal of Commonwealth Criminal Law [2011] The Supreme Court allowed the appeal by a majority of six to one,2 and restored Gnango’s conviction for murder. B. The law This case falls into what one might call “cross-fire” murders. It combined three areas of law in a way that had not arisen previously in this jurisdiction: (i) joint enterprise; (ii) transferred malice; and (iii) exemption from liability where a party to what would normally be a crime is a victim of it. In the judgment delivered by Lord Phillips and Lord Judge, these three were examined in detail. In addition, the judgment raises a question of consent to harm to oneself – although this was not examined by any of their Lordships. 1. Joint enterprise Joint enterprise, stemming from section 8 of the Accessories and Abettors Act 1861, is the term used to describe one of two circumstances. In the first, D1 and D2 agree to the commission of an indictable offence – for example, burglary. Both are present at the scene of the offence, and D1 commits the offence. By virtue of joint enterprise liability, both are equally guilty of the offence: it is committed pursuant to their joint criminal purpose, and D2 is equally liable by virtue of having “aided, abetted, counselled, or procured” (as defined at common law) D1 to commit the offence. The second form is more contentious, and has garnered some coverage in recent years in the context of gang-related affrays. Here, D1 and D2 again agree to commit an indictable offence (crime α – again, say, burglary). Upon entering the house they intend to burgle, they are met by the householder. D1 hits him over the head with a jemmy, and kills him (crime β). D2 had no intention or wish of such harm occurring, but he had foreseen the possibility that D1 might inflict serious injury on someone in the course of the burglary. D2’s liablility stems from his having continued in the commission of crime α, when he realised (but probably did not wish) that crime β might be committed in the course of it: in our example, then, D2 has “associated himself with a foreseen murder”.3 As to the reasoning adopted by each judge, see C., post. The leading judgment was given by Lord Phillips and Lord Judge, with whom Lord Wilson agreed; Lord Dyson, Lord Brown and Lord Clarke each gave a concurring judgment; and Lord Kerr gave the sole dissent. 3 R. v. A. [2010] EWCA Crim 1622, [2011] Q.B. 841, [27] (Hughes L.J.). 2 © 2011 Association of Commonwealth Criminal Lawyers and contributors. J.C.C.L. 2. Transferred malice Case Notes 301 Transferred malice – perhaps better described as “transferred mens rea” – occurs where a defendant, D, intends to kill or cause serious injury to a victim, V1, but accidentally kills another, V2. So, in this case, where B shot at Gnango, intending to kill him or cause him serious bodily harm, but instead killed Pniewska. The doctrine applies also to accessories: thus, where D2 has aided, abetted, counselled or procured D1 to murder V1, but D1, intending to kill V1, accidentally kills V2, D2 will be guilty of the murder of V2. 3. The “victim rule”: exemption from liability of the intended victim of a crime This has often been called the “victim rule:”4 where legislation is designed to protect a specific class of people, they will not be convicted as accessories to that offence, where they co-operate in its commission. This common law principle stems from the decision in R. v. Tyrrell.5 There, a girl aged between 13 and 16 was convicted of aiding, abetting, counselling or procuring, and inciting, a man to have carnal knowledge of her, an offence under section 5 of the Criminal Law Amendment Act 1885. On appeal, her conviction was roundly quashed: it was “impossible to say that the Act … [could] have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves”.6 It was applied, if reluctantly, by the Court of Appeal in R. v. Whitehouse,7 to preclude conviction of a father for inciting his underage daughter to aid and abet him to commit incest with her. In relation to conspiracy to commit a crime, section 2(1) of the Criminal Law Act 1977 codified the “victim rule.” Section 51 of the Serious Crime Act 2007 did the same for offences under Part 2 of that Act (“encouraging or assisting crime”), albeit more restrictively. 4. Consent to harm Although their Lordships did not raise this fourth matter, the various approaches taken by the majority beg the question. It is most relevant, in this context, in its interplay with the “victim rule,” and because of the approach taken to this case by their Lordships (as will become apparent, post). The fundamental principle is that the victim, V’s consent to serious harm of him- or herself, in the absence of good reason, is no defence for the perpetrator of that harm, D. See Glanville Williams, “Victims and other exempt parties in crime” (1990) 10 Legal Studies 245. 5 [1894] 1 Q.B. 710 (Crown Cases Reserved). 6 ibid., 712 (Lord Coleridge C.J.) 7 [1977] Q.B. 868. 4 © 2011 Association of Commonwealth Criminal Lawyers and contributors. 302 Journal of Commonwealth Criminal Law [2011] Thus, in a prize fight, the fact that V, one of the fighters, consented to the fight, and foreseeable harm being inflicted upon himself by D, the other, was no defence for D.8 Likewise, in a case where sadomasochists inflicted pain on each other for sexual gratification, with clear consent, this consent was no defence to the perpetrators.9 It has also been held that, in any case, consent will not save D where the harm caused consists of a more than transient or trivial injury.10 C. The judgments The majority in the Supreme Court may have agreed in the outcome, but they disagreed on their reasoning. Four different “routes” to convicting Gnango were mooted, with varying levels of support. The first, “parasitic accessory liability,”11 was the basis on which the case was left by the judge to the jury and on which they convicted: that Gnango and B participated in the commission of an affray, in the course of which B committed an offence (murder) which Gnango had foreseen he might commit. The second was that Gnango aided and abetted B to shoot at him by encouraging him to do so. This was the approach that commanded the greatest support: it was led by the judgment of Lord Phillips and Lord Judge,12 with whom Lord Wilson agreed, and was supported, if a little uncomfortably, by Lord Dyson.13 This approach had, however, been rejected by the trial judge, and was not left to the jury. The third basis treated Gnango and B as joint principals in a joint enterprise to engage in unlawful violence designed to cause death or serious injury, where death resulted. This was the basis on which Lord Brown14 and Lord Clarke15 would have upheld the conviction. The fourth approach was that Gnango caused B to shoot at him, and the victim’s death was a foreseeable consequence of this reaction. R. v. Coney (1882) 8 Q.B.D. 534 (Divisional Court). See also Att.-Gen.’s Reference (No. 6 of 1980) [1981] Q.B. 715 (Court of Appeal). 9 R. v. Brown (A.) [1994] 1 A.C. 212 (House of Lords); but see Lord Mustill’s powerful dissent. Cf. R. v. Wilson (A.) [1997] Q.B. 47 (Court of Appeal), where a wife’s consent to her husband branding her buttocks with a butter knife was held to be valid. 10 R. v Emmett, The Times, October 15, 1999 (Court of Appeal); the harm was an unintended consequence of consensual sadomasochistic sexual acts. 11 This term was coined by Professor Sir John Smith Q.C.: R. v. Gnango [2011] UKSC 59, The Times, December 15, 2011, [15]. 12 ibid., [64]. 13 ibid., [103]-[104]. 14 ibid., [71]. 15 ibid., [81]. 8 © 2011 Association of Commonwealth Criminal Lawyers and contributors. J.C.C.L. Case Notes 303 This “route” was mooted by Lord Clarke, 16 and considered by Lord Dyson.17 Lord Kerr gave the only dissent, challenging each approach above, in turn. In discussing each approach, it is therefore helpful to contrast the majority judgments with that of Lord Kerr. 1. Joint enterprise: “parasitic accessory liability” Their Lordships considered this approach, and variously rejected it, as had the Court of Appeal.18 The argument ran that Gnango and B had a joint intention to have an affray (Public Order Act 1986, s.3(1) and (2),19 crime α), in the performance of which B committed murder (crime β), which was foreseeable, and that Gnango should therefore be held liable for the murder. Lord Phillips and Lord Judge examined in detail the offence of affray, on which the Crown had tried to base such liability. They dismissed this approach as follows: “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.”20 Lord Dyson agreed.21 In addition, their Lordships held that “[b]ecause affray does not necessarily involve any common purpose it cannot automatically constitute a foundation for parasitic accessory liability.”22 Lord Kerr agreed;23 however, on a close analysis of section 3 of the Public Order Act 1986, his Lordship held that the words “towards another”, in ibid., [83]-[91]. ibid., [106]. 18 R. v. Gnango [2010] EWCA Crim 1691, [2011] 1 W.L.R. 1414 (“Gnango (C.A.)”). 19 The section reads: “(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).” [Emphasis added.] Lord Phillips and Lord Judge considered whether the italicised words in s.3(2), ante, would imply that D1 and D2 would have to have engaged in violence towards another (Gnango (n.11), [36]), but dismissed this as “nonsensical” (ibid., [37]). Cf. Lord Kerr’s dissent, post. 20 ibid., [43]. 21 ibid., [96]. 22 ibid., [38]. 23 ibid., [114]. 16 17 © 2011 Association of Commonwealth Criminal Lawyers and contributors. 304 Journal of Commonwealth Criminal Law [2011] subsection (1), meant that each of D1 and D2 only had the mens rea for an individual offence of affray, and that a joint affray was therefore unavailable as a basis for liability for Gnango.24 In this, he disagreed with Lord Phillips and Lord Judge.25 On this point, therefore, in outcome, their Lordships were unanimous: because of the way the case was run by the Crown – that Gnango and B had participated in an affray by shooting at each other with homicidal intent – this route to liability was not open to them. 2. Aiding and abetting: secondary liability This was the approach taken by the majority of four. Lord Phillips and Lord Judge, calling this the “direct route” that the Crown had believed was unavailable due to the “victim rule,” laid it out as follows: (iv) B attempted to kill Gnango; (v) by agreeing to the shootout, Gnango aided and abetted B in this attempted murder; (vi) B accidentally killed Pniewska instead of Gnango; under the doctrine of transferred malice he was guilty of her murder; and (vii) the doctrine of transferred malice applied equally to Gnango as aider and abetter of B’s attempted murder of him; therefore, he also was guilty of Pniewska’s murder.26 By this logic, Gnango and B formed a mutual plan or agreement – either beforehand, or on the spur of the moment when they saw each other and fired at each other – to shoot at each other and be shot at, and in which each would attempt to kill or seriously injury the other.27 Each was party to the other’s attempt to kill or seriously injure him: Gnango aided, abetted, counselled and procured B to shoot at him with murderous intent, making him guilty of aiding and abetting the attempted murder of himself. It is submitted that Lord Kerr’s reasoning on this point was particularly clear. Gnango must have foreseen that, in engaging in a gunfight with B, he might be shot. However, “[b]eing 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.”28 Gnango’s intent, it is submitted, was to kill the killer and to avoid ibid., [112]-[113]. See n.19, ante. 26 Gnango (n.11), [44]. 27 Lord Dyson, especially, drew out the necessity that the shootout take place “pursuant to a plan” or agreement: ibid., [101]. 28 ibid., [125]. His Lordship draws support from Graham Virgo, “The Doctrine of Joint Enterprise Liability” [2010] 10 Archbold Review 6. 24 25 © 2011 Association of Commonwealth Criminal Lawyers and contributors. J.C.C.L. Case Notes 305 being killed himself. It is artificial to treat their intent as joint:29 it is identical, but opposite. Lord Kerr’s primary objection, however, was that the jury were “never asked to confront the question whether the shared common purpose was not only to shoot, but to be shot at”.30 This finding was therefore not open as a “route” to upholding the conviction on appeal.31 Indeed, apart from a finding that there was an “agreement to shoot and be shot at,” there is an alternative, obvious basis on which the jury’s verdict may have been founded. The judge had put to them the “parasitic accessory liability” approach, which all seven of their Lordships rejected. It being extremely likely that this was in fact the basis on which they convicted Gnango, “there was 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.”32 In coming to their conclusion, Lord Phillips and Lord Judge examined the question of whether the “victim rule” precluded their “accessory liability” approach. They established that the statutory rules contained in the 1977 and 2007 Acts (see B.3., ante) were not applicable in this case.33 They held that their enactment indicated that there was no common law rule that precluded conviction of a defendant of being party to a crime of which he was the actual or intended victim34 – which seems surprising, given what is said of Tyrrell. They also pray in aid the (now-repealed) common law offence of attempted suicide. With respect, this last point seems rather to beg the question: surely, its repeal by Parliament, by the Suicide Act 1961, indicated a shift in social norms; the common law does not continue to exist in some form of suspended animation independent of its current application; if the 1961 Act were repealed, this should not lead to the reinstatement of the common law offence of attempted suicide. Their Lordships further referred with approval to Brown,35 and quoted from Att.-Gen.’s Reference (No. 6 of 1980), as follows: “… 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”.36 They 29 30 31 32 33 34 35 36 Cf. the quote at n.20, ante. Gnango (C.A.) (n.18), [59]; see Gnango (n.11), [115]. Gnango (n.11), [122]. ibid., [126]. ibid., [49]-[51]. ibid., [52]. (n.9.) (n.8), 719 (Lord Lane C.J.). © 2011 Association of Commonwealth Criminal Lawyers and contributors. 306 Journal of Commonwealth Criminal Law [2011] saw no reason why they should extend the “victim rule” to apply in cases such as this.37 The consequence of the majority’s judgment, on this reasoning, is that, had B’s fatal shot missed Pniewska and hit Gnango, wounding him, but not fatally, Gnango should, on his recovery, have been tried for the attempted murder of himself. Although Lord Phillips and Lord Judge clearly state that there is no bar to such liability,38 surely this would be a farcical spectacle? It further opens up again the question of sadomasochistic sex act cases such as Brown. With respect, it is submitted that the fundamental principle at stake in such cases is that of consent to harm (see B.4., ante), and preventing giving the person inflicting the injury a defence. The “victims” in Brown clearly encouraged their assailants to harm them with the intent that they should do so; they too could now be charged (as aiders and abettors) with the intentional infliction of serious harm on themselves. 3. Joint participants in unlawful violence: liability as a principal This approach, taken by Lord Brown and Lord Clarke, holds that Gnango was liable as a principal to a joint enterprise (an agreement between himself and B) to engage in unlawful violence specifically designed to cause death or serious injury, where death occurred as a result. Lord Phillips and Lord Judge held that, ultimately, whether Gnango was correctly described as a principal or an accessory was irrelevant to his guilt.39 However, here again, it is submitted that Lord Kerr’s dissent is to be preferred. Joint enterprise liability is a form of secondary liability. D2 is implicated not only in the offence he and D1 agreed to undertake, but also in the foreseeable, further offence that D1 perpetrated. On the other hand: “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. “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. … [I]t 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 37 38 39 Gnango (n.11), [53]. ibid., referring, in particular, to Brown (n.9). ibid., [62]. © 2011 Association of Commonwealth Criminal Lawyers and contributors. J.C.C.L. Case Notes 307 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.”40 4. Causation This approach was mooted by Lord Clarke. In essence, it holds that, where D2 (Gnango) causes D1 (B) to shoot at him, and D1 hits V (Pniewska), a third party: (i) D1’s actions (shooting at D2) were a foreseeable consequence of D2’s actions – be they telling D1 to come to the shoot-out or shooting at D1; (ii) D2’s actions were therefore an operative cause of V’s harm; (iii) D1’s response, being caused by D2, was not therefore a novus actus interveniens. Lord Clarke referred to R. v. Pagett.41 There, Pagett shot at a policeman and held his pregnant girlfriend in front of him as a shield against any retaliation. The policeman returned fire, shooting and killing the girlfriend. At trial, Pagett was acquitted of murder, but convicted of manslaughter. The Court of Appeal, however, held that, if the jury was sure that the policeman had acted in reasonable self-defence, it was open to them to convict Pagett of murder.42 Lord Clarke proposed that it would have been open to the jury to convict Gnango if they were sure that his act in shooting at B was a cause of B shooting at him with intent to kill him or cause him serious harm, and Pniewska was killed as a result.43 However, as the case was not put to the jury on this basis, his Lordship concluded that it was not open to the Supreme Court to adopt this approach.44 Lord Dyson also accepted that such an approach was viable, in such cases.45 However, he correctly identifies that this would be difficult to prove, on the facts of Gnango. Lord Kerr makes this same point particularly clearly: “[This] thesis … 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. … ibid., [129]-[130]. (1983) 76 Cr.App.R. 279 (Court of Appeal). 42 ibid., 291 (Goff L.J.). See Gnango (n.11), [85]-[88]. 43 Gnango (n.11), [91]. 44 ibid., [92]. 45 ibid., [106]. His Lordship prays in aid the analysis of David Ormerod, “R. v. Gnango: Comment” [2011] Criminal Law Review 151. His Lordship also suggests that, following R. v. Latif, [1996] 1 W.L.R. 104 (House of Lords), it might be argued that, even if B was acting in a free, deliberate and informed manner, both might be liable (albeit perhaps to different extents) for Pniewska’s murder. 40 41 © 2011 Association of Commonwealth Criminal Lawyers and contributors. 308 Journal of Commonwealth Criminal Law “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.”46 [2011] It is submitted that this causation-based approach is to be preferred in cases such as this: it has the advantage of being clear, and of accurately reflecting the culpability of both D1 and D2. Where D2 shoots first, and D1 shoots back in reasonable selfdefence, hitting V, D1 is not liable for murder. Where D1 shoots first, and D2 acts in reasonable self-defence, he is not automatically liable for D1’s shooting of V. D. Conclusion 1. Lord Kerr’s dissent: legal clarity, not policy As will be evident from the above, it is submitted that Lord Kerr’s dissent is the clearest and most persuasive judgment. It correctly identifies the legal principles at stake in each approach mooted, and why they cannot in this case support a conviction for murder. As to the reasons behind the majority’s judgment, it is submitted that these can be seen most clearly in Lord Brown’s judgment. He states: “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”. One might see Gnango’s conviction as an attempt adequately to reflect the harm caused. The death of Magda Pniewska was tragic. In the circumstances, the courts found themselves under considerable public pressure to deliver a conviction for her murder. On the facts, however, convicting Gnango of her murder seemed to require a considerable stretch of legal logic – especially as it was put to the jury. It is submitted that their Lordships should rather have sent the case back for a retrial, on the basis of the “causation” approach. 2. Armel Gnango’s culpability Gnango was clearly not a pleasant individual. He armed himself with a handgun, before going to meet someone he had a quarrel with. He shot at that person, with the intention to kill or at least to inflict grievous bodily harm. On the basis of these facts he was in fact convicted of attempted murder and of possession of a firearm with intent to endanger life (Firearms Act 1968, s.16), both of which carry a 46 Gnango (n.11), [131]-[132]. © 2011 Association of Commonwealth Criminal Lawyers and contributors. J.C.C.L. Case Notes 309 maximum sentence of life imprisonment. Upon the quashing of his conviction of murder by the Court of Appeal, that court had sentenced him – as a 17-year-old – to detention for public protection with a minimum term of 15 years (equivalent to a determinate sentence of 30 years). In passing this sentence, the court said that his culpability was the same as if he had committed the full offence, and – somewhat remarkably – “[l]ikewise the harm which was the actual, and foreseen, consequence of his crime was the same, whichever his offence.”47 Whilst this looks suspiciously as if Pniewska’s death was being reflected in his sentence, notwithstanding the court had just quashed his conviction for her murder, there is no escaping that he was due substantial custodial sentences for the offences of which he was undoubtedly guilty. ATLI STANNARD.* CANADA SAYS “NO” TO SAYING “YES” IN ADVANCE: THE UNCONSCIOUS SEXUAL COMPLAINANT R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 (May 27, 2011) Supreme Court of Canada Consent – Sexual assault – Unconsciousness The issue Can an accused perform sexual acts on an unconscious complainant without attracting criminal liability if the complainant has consented to these acts in advance of being (again, with consent) rendered unconscious? This was the question the Supreme Court of Canada had to grapple with in R. v. J.A. By a majority (6 : 3), the court said “no”, holding that the Canadian Criminal Code defined consent in a way that required the complainant to be conscious throughout the sexual activity in question, so as to be able to evaluate each and every sexual act committed. 47 * Gnango (C.A.) (n.18), [84]. M.A. (Oxon.), B.A. Hons (Cantab.), Barrister (Middle Temple). © 2011 Association of Commonwealth Criminal Lawyers and contributors.