R v Gnango  UKSC 59
On appeal from  EWCA Crim 1691
JUSTICES: Lord Phillips (President); Lord Brown; Lord Judge; Lord Kerr; Lord Clarke; Lord Dyson; Lord Wilson
The facts of this case were extraordinary and tragic. On 2 October 2007, a 26-year-old Polish care worker, Magda Pniewska, was walking home from a nursing home through a car park in New Cross, South London. She was on the telephone to her sister when she was shot in the head and killed. The shot was fired in an exchange of fire in the car park between two gunmen, ‘B’ and Mr Gnango, neither of whom had been aiming at Magda. They had been shooting at each other. Scientific evidence showed that the single bullet to Magda’s head had come from B’s and not Mr Gnango’s gun. B was clearly guilty of murder under the doctrine of ‘transferred malice’. B however was never caught. Mr Gnango was charged with and convicted of murder following trial aged 17. On his appeal, the Court of Appeal overturned his conviction. The Court held that ‘joint enterprise’ liability for murder, the basis on which the court considered his conviction to rest, could not arise on the facts.
In considering the appeal by the Crown, the Supreme Court was asked to address the following 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?
On December 14, 2011, The Supreme Court allowed the appeal by a 6-1 majority and restored the conviction for murder. It was held that the defendant was guilty of murder not as an accessory but as a principal to an agreement to engage in unlawful violence specifically designed to cause death or serious injury, and on the facts of this case whether the defendant is correctly described as a principal or an accessory is irrelevant to his guilt.
Lord Kerr, dissenting, maintains that the trial judge did not invite the jury to address the important element of the avowed aiding and abetting: the agreement to be shot at. The exchange of fire was at least as likely to be the result of a sudden, simultaneous and coincident intention to fire at each other as the result of an agreement to shoot.