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Who Fired the Fatal Shot?

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It doesn’t matter said Lord Phillips giving his judgment in R v Gnango In a tragic incident a care worker was killed in the cross fire between two gunmen ‘B’ and Mr Gnango. The bullet actually came from B’s gun but B was never caught. Mr Gnango was charged with murder and convicted. The conviction was overturned by the Court of Appeal which held that there was no ‘joint enterprise’ to support a conviction.

The Crown asked the Supreme Court to address this question :

“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?”

The conviction was restored by a 6 – 1 majority (Lord Kerr dissenting). The leading judgment was given by Lord Phillips and Lord Judge who did not find it necessary to determine whether Gnango was a principal or secondary offender : the jury had found that both men had agreed to the joint enterprise of having a shoot-out. Lord Wilson agreed.

The full judgment is here R v Gnango [2011] UKSC 59. The Supreme Court also issued apress summary.