JOINT ENTERPRISE

Two people have a shootout in a car park in South London. They don't hurt each other, but an innocent bystander, a Polish care worker, is accidentally shot in the head and killed. A is known to the police, and there is ample evidence that he was involved; he is arrested and tried. The police have an idea who B is, but do not have enough evidence to prove it beyond reasonable doubt; he remains at large. The ballistics evidence shows clearly that the single bullet that killed the bystander came from B's gun. A is clearly guilty of crimes against B (attempted murder, and possession of a firearm with intent to endanger life); but what, if anything, is he guilty of in respect of the bystander?

Murder is the answer, at least in England and Wales. That is the outcome of the recent decision by the U.K. Supreme Court in R v. Gnango. The case is interesting, because the precise combination of circumstances has apparently never happened before; complicated, since it involves a number of interlocking principles of criminal law; and controversial, since the lone dissent in the 6-1 decision is to my mind the most persuasive.

The first principle is that of transfered malice. If I shoot at someone, intending to kill them, but miss and accidentally kill someone else, then I am guilty of murdering that person. That is so, even if I absolutely don't want to kill the victim (because, for instance, she is my wife, whom I love). I have "transfered my malice" from my intended victim to the actual victim.

The second principle is that of joint enterprise, which has a number of parts. First, if two people commit a crime together, then they are both guilty of it. Secondly, if one person "aids, abets, counsels or procures" another person in the commission of a crime, then they are equally guilty, even if they are not present at the crime scene. So a gang leader is guilty of a drug crime, even if it is only the mule that is caught at customs (proving the link beyond reasonable doubt is of course the difficult bit evidentially, but the principle is straightforward). Thirdly, two people can be jointly guilty of a more serious crime if they are already engaged in criminal activity, and the more serious crime is one that the "innocent" party had foreseen might happen. The classic example given is of two people committing a burglary. During the course of the burglary, the owner disturbs them and one of the burglars kills him. The other burglar would be equally guilty (of murder or manslaughter), if he had foreseen that this might happen during the burglary, perhaps because his partner had taken a loaded shotgun with him. If, on the other hand, the killer pulled out a knife which his partner did not know he had on him, then he would not be.

The third principle is that you can't be guilty of a crime under the aiding and abetting rule, if you are yourself the victim of it.

In the Gnango case, B was clearly guilty of the murder of the bystander under the transfer of malice doctrine, even if it couldn't be proved who B was. Furthermore, A (Gnango) was not considered to be a victim of B's crime, since he was actively shooting back. So the nub of the case against Gnango rested on finding a "joint enterprise" that he was engaged in with B. As part of that joint enterprise, he would have foreseen that B might accidentally shoot and kill an innocent bystander. Since he foresaw it, and since that was indeed what happened, then Gnango would be guilty of murder, just like B.

At first instance, the judge ruled out the shootout as the joint enterprise. Yes, both men were shooting; however, their intents were not joint, but equal and opposite, namely to kill the other without being killed. With that ruled out, the prosecution instead relied on the crime of affray, a common law concept of ancient lineage, which essentially means unlawful violence which causes someone at the scene to fear for their personal safety (eg a fight at a football match). With affray as the joint enterprise, Gnango was convicted of the murder of the bystander. However, this approach was rejected by the Court of Appeal, who pointed out that the offence of affray does not require a joint purpose, since a fearful bystander will not know whether two people are fighting, or one person is fighting and one is merely defending himself. Since affray can not be an automatic joint enterprise, and the prosecution had not proved that it was, the Court of Appeal quashed the murder conviction.

In the prosecution's subsequent appeal to the Supreme Court, the judges all agreed that affray would not do. Instead, the majority went back to the shootout as the joint enterprise; the agreement was not an agreement to shoot, but an agreement to shoot and be shot at. In other words, B attempted to murder Gnango; Gnango, not being a victim aided and abetted B in this attempt, and so was in a joint enterprise with B; Gnango must have foreseen that one of the consequences of this was that an innocent bystander might get shot by B; an innocent bystander did indeed get shot and killed by B; so Gnango is equally guilty of B's transfered malice.

All very neat. There is however a big snag, which is why Lord Kerr's lone dissent is so persuasive. The snag is that this approach was specifically considered by the judge and then ruled out, and so it was never put to the jury. Appeal courts should, as a general principle, not uphold a conviction based on an argument not considered by the jury.

In some ways you can sympathise with their lordships. The authorities were under great pressure to come up with a conviction. Gnango is undoubtedly an unpleasant character; and if his conviction had been quashed, then it would have meant that justice had been given to B, a murderer on the run, but not to the innocent bystander. As Lord Brown put it, "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". That may well be so as a statement of the law. However, it would have been better in my view if the court had set out the general principles involved, but then upheld the quashing of the conviction on the ground that the principles were not followed in this particular case. Trials must not only be fair, but be seen to be fair.

At the end of the day, the court was giving a strong public statement. Voluntary violence, whether duelling, prize fighting or shooting, should not be tolerated as a matter of public policy. In 1994, the House of Lords gave a similar statement in a case (R v. Brown) involving acts of violence by a group of homosexual sado-masochists, where they were consensual, there were no children involved, and everything took place in private. That case was very controversial, not least because it was a 3-2 decision; I suspect that the Gnango case will also turn out to be.

Walter Blotscher