R v Gnango
R v Gnango | |
---|---|
Transferred malice; Victims |
Regina v Armel Gnango [2011] UKSC 59 is the leading
Background
At approximately 6.20 pm on 2 October 2007 a 26-year-old Polish care worker,
Scientific examination showed that "Bandana man", not Gnango, had fired the fatal shot. After Pniewska was shot both Gnango and "Bandana man" fled the scene.[5][6] The killing was widely reported in the media as an example of a "Wild West" shootout.[7][8]
Criminal proceedings
The
In May 2008 Gnango stood trial at the
The jury rejected Gnango's evidence and on 22 May 2008 he was convicted of the murder of Pniewska, the attempted murder of "Bandana man" and possessing a firearm with intent to endanger life.
On 23 June 2008, at the Crown Court at St Albans, Mr Justice Cooke sentenced Gnango to detention for life for the murder of Pniewska, with a minimum term of twenty years, and imposed concurrent sentences of detention for public protection, with a minimum term of twelve years, for the attempted murder of "Bandana man" and a minimum term of five years for possession of a firearm with intent to endanger life.[14]
Appeal to the Court of Appeal (Criminal Division)
With the leave of a single judge of the
The court held that "[t]he jury was never asked to confront the question whether the shared common purpose was not only to shoot, but to be shot at".[17] The court ruled that "[t]he existence of a joint enterprise in committing crime A is ... essential to liability. That joint enterprise can either rest on an agreement or common purpose to commit crime A or simple aiding and abetting crime A".[18] The court considered that "simple participation in the affray with foresight, but without a joint enterprise to commit the affray, w[as ... in]sufficient to sustain the conviction".[19] The court therefore allowed Gnango's appeal and quashed his conviction.[20] for the murder of Pniewska.[16]
On 26 July 2010 the court dismissed Gnango's renewed application for leave to appeal against sentence. However, noting that it was a "clear case for a sentence which proclaimed the public abhorrence of the crime being marked by it" and the "very grave" aggravating features of the offending, the court exercised its powers under section 4 of the Criminal Appeal Act 1968 to increase Gnango's sentence for the attempted murder of "Bandana man" to detention for public protection with a minimum term of fifteen years.[21]
Appeal to the Supreme Court
Under section 33(2) of the Criminal Appeal Act 1968, the Court of Appeal certified that the following point of law of general public importance was involved in its decision.
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?[22]
The Supreme Court subsequently granted the Crown permission to appeal against the judgment of the Court of Appeal, and the appeal was heard before a panel of seven Justices on 11 and 12 July 2011. On 14 December 2011, the Supreme Court handed down its judgment. By a 6–1 majority, the court allowed the Crown's appeal, answered the certified question in the affirmative, and restored Gnango's conviction for the murder of Pniewska.[23]
The
Lord Brown of Eaton-under-Heywood concurred, adding that "The general public would 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."[23] He did, however, consider Gnango guilty as a principal. Lord Clarke of Stone-cum-Ebony agreed that Gnango was guilty as a principal.[27] Lord Dyson concurred with the leading judgment and would have restored "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".[28] Lord Kerr of Tonaghmore gave the only dissenting judgment. He would have dismissed the Crown's appeal on the basis that "there was no occasion for [the jury] 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"[29] and that Gnango could not have been guilty as a joint principal.[30]
Consequential orders
On 19 January 2012, as a result of the judgment of the Supreme Court, the Court of Appeal (Hughes VP, Treacy & Blair JJ) restored Gnango's sentence of detention for life with a minimum term of twenty years for murder and reversed the Court of Appeal's earlier decision to increase the minimum term imposed for attempted murder.[31]
Reaction and analysis
Writing in The Guardian before the judgment of the Supreme Court was handed down, Anita Davies speculated that the reversal of the Court of Appeal's judgment would further complicate the law of joint enterprise and might "signal approval by English courts for a more American legal policy model for dealing with street violence".[32]
Atli Stannard [who?] supported this analysis, suggesting that the prospect of Gnango being prosecuted for his own attempted murder "surely would ... be a farcical spectacle", and that the court's concern for public opinion had led it to make an erroneous decision.[34]
Elaine Freer suggests that "it is very hard to see under what common law rule or legislation Gnango is guilty of murder ... [as] the mens rea for an affray is not the same as for a joint enterprise murder",[35] while Alec Samuels considers that the case must be considered in the context of the "unsatisfactory state of the law and sentencing around murder and manslaughter", and the "[t]he basic problem [of] ... how far association amounts to complicity".[36] Dr Jonathan Rogers, Senior Lecturer in Laws at University College London, suggests that an uncertain (quite obscure) route to finding the facts homicide renders the conviction unsafe and contrary to Article 6 of the European Convention on Human Rights, and that the decision was motivated by a desire to mollify public opinion.[37]
The
Before the Supreme Court had determined the appeal the Law Commission stated that the "case relates to a fairly narrow point" and that it could not offer an opportunity to address broader problems in the law of joint enterprise. The Commission concluded that "Legislative reform is ... needed."[39]
References
- ^ Supreme Court judgment at [4]
- ^ a b A. Dawar, "Youth found guilty of gunfight murder", The Guardian, (22 May 2008)
- ^ BBC News, "Gun victim shot 'phoning sister'", BBC News Online, (4 October 2007)
- ^ a b D. Gardham, "Grinning gunman guilty of care worker Magda Pniewska's murder", The Daily Telegraph, (22 May 2008)
- ^ Supreme Court judgment at [8]-[9]
- ^ Court of Appeal judgment at [10]
- ^ Sky News, "'Wild West' Murder Teen Given Life", Sky News Online, (23 June 2008)
- ^ "Life sentence for teen killer", The Metro, 23 June 2008.
- ^ Supreme Court judgment at [9]
- ^ a b Court of Appeal judgment at [12]
- ^ A. Bloxham, "Sister of shot nurse heard her dying breath", The Daily Telegraph, (14 May 2008)
- ^ Court of Appeal judgment at [1]
- ^ BBC News, "Man jailed over crossfire death", BBC News Online, (23 June 2008)
- ^ P. Cheston, "Gunman gets 20 years for crossfire murder of nurse", London Evening Standard, (23 June 2008)
- ^ Court of Appeal judgment at [4]
- ^ a b "Murder conviction quashed in crossfire shooting appeal", Garden Court North Chambers News, (26 July 2009)
- ^ Court of Appeal judgment at [59]
- ^ Court of Appeal judgment at [67]
- ^ Court of Appeal judgment at [61]
- ^ D. Warburton, Murder; whether secondary liability by joint enterprise arises in circumstances of mutual conflict between defendants, R v Gnango [2010] EWCA Crim 1691, Journal of Criminal Law, 2011, Vol. 75.6, 457-462
- ^ Court of Appeal judgment at [77]-[84]
- ^ Supreme Court judgment at [1]
- ^ a b BBC News, "Conviction reinstated over New Cross crossfire murder", BBC News Online, (14 December 2011)
- ^ Supreme Court judgment at [43]
- ^ Supreme Court judgment at [52]
- ^ Supreme Court judgment at [63]
- ^ Supreme Court judgment at [81]
- ^ Supreme Court judgment at [104]
- ^ Supreme Court judgment at [126]
- ^ Supreme Court judgment at [132]
- ^ R v Armel Gnango [2012] EWCA Crim 77
- ^ A. Davies, "A more American legal model for gang violence?", The Guardian, 25 July 2011.
- ^ R. Buxton, "Being an accessory to one's own murder", Criminal Law Review, (2008), no. 4, pp. 275-81
- ^ A. Stannard, "Securing a Conviction in “Crossfire” Killings: Legal Precision vs. Policy", Journal of Commonwealth Criminal Law, issue 2, (2011), pp 299-309
- ^ E. Freer, "R. v. Gnango: The Curious Case of Bandana Man — Part 1", Criminal Law & Justice Weekly, vol. 176, issue 14, (24 March 2012), p 182
- ^ A. Samuels, "Joint Enterprise", Criminal Law & Justice Weekly, vol. 176, issue 7, 11 February 2012, pg. 91
- ^ J. Rogers, "Shooting (and judging) in the dark?", Archbold Review, (2012), 1, pp 8-9
- ^ House of Commons Justice Committee, "Joint Enterprise: Eleventh Report of Session 2010–12", HC 1597, 17 January 2012, p. 11.
- ^ The Law Commission, "Eleventh Programme of Law Reform", HC 1407 (London), 19 July 2011, p. 28