THE modern law on the criminal liability of accessories began in 2016 with Jogee [2016] UKSC 8, [2017] A.C. 387, which appears to have been so significant in its reassertion of the core principles of secondary liability that most if not all of the previous law is only of historical interest. But, as the Court of Appeal confirmed in Seed [2024] EWCA Crim 650, some of that old law remains relevant, particularly Gnango [2011] UKSC 59, [2012] 1 A.C. 776, even though the ratio of Gnango is unclear and its compatibility with Jogee is uncertain.

Gnango concerned the murder of an innocent passer-by who had walked between the defendant and an unidentified assailant (known as “Bandana Man”) whilst they were engaged in a gunfight. The gunfight had arisen spontaneously, so that there was no opportunity for an express agreement to participate in it, but Gnango was still convicted of being an accessory to murder because of his encouragement of Bandana Man to shoot by shooting at him. Seed also involved a gunfight without prior agreement, but with the crucial difference that the deceased was on the same side as the accessories. The case concerned two rival gangs, the Blues and the Reds. An associate of the Reds had been killed and, even though it had not been established that the perpetrator was a member of the Blues, four of the Reds sought revenge. They drove into the Blues’ territory, where members of the Blues fired at them. The Reds got out of their vehicle and fired back. During this gunfight one of the Reds was fatally shot. The perpetrator of the killing, “A”, was never identified but the three surviving members of the Reds were convicted of various offences, including murder as accessories. They appealed on various grounds but relating primarily to the evidence rather than the trial judge’s analysis of the law.

It was common ground between the prosecution and the defence, and accepted by the Court of Appeal, that, whilst Gnango had to be read in the light of Jogee, it remained relevant. This had previously been accepted by the Court of Appeal in Morgan [2021] EWCA Crim 895, albeit in an interlocutory appeal, another case where the victim was on the same side as the defendant. In Morgan the court recognised, at [22], that the effect of Gnango and Jogee together is that, if a defendant agrees with others to engage in a shoot-out, or intentionally encourages or assists others to fire shots, intending that others in the line of fire should die or be seriously injured, the defendant will be guilty of murder of those who were killed.

In Seed, the prosecution and the defence accepted that, as a result of Gnango, the defendants could only be convicted as accessories to murder if they were party to an agreement with A, as the principal, that they would each shoot and be shot at. Even though there had been no prior discussion between the gangs, the Court of Appeal recognised that an agreement to shoot and be shot at could be inferred where two or more people engaged in, or assisted or encouraged, shooting at each other, knowing that it was virtually certain that the other(s) would be armed and would either open or return fire. Further, it was necessary to show that the accessory intended to kill or to cause serious injury. Since it was open to the jury to infer an agreement to shoot and to be shot at, the convictions were upheld.

Identifying an agreement on these facts is highly artificial. The trial judge had concluded that, because of the history of hostility between the two gangs (with evidence of swift reaction to previous incidents of violence), and since the jury could infer that A would realise that it was virtually certain that the Reds would turn up in the Blues’ territory and would fire at the Blues and that the Reds having turned up would know that it was virtually certain that they would come under fire, it followed that there was a shared common purpose to shoot and be shot at. But just because there was a common purpose it does not follow that there was an agreement between the parties; equal and opposite purposes do not necessarily constitute a meeting of minds. Further, even the identification of the “common purpose” of shooting and being shot at is unconvincing, since the Reds presumably wanted there simply to be an ambush without contest and then rapid departure from the scene; they would not be seeking a shoot-out.

Even though the conclusions about agreement and common purpose appear artificial, there are even more significant concerns about the decision, particularly why proof of an agreement was relevant in the first place? Further, in assessing the legitimacy of the court’s assumption that Gnango was compatible with Jogee, two questions need to be considered: what precisely did Gnango decide, and does it remain relevant after Jogee? Neither question was considered by the Court of Appeal.

In Gnango, the focus of the majority was on whether Gnango was liable as an accessory by encouraging the murder to be committed. This was established because there was found to be a tacit agreement to have the gunfight which arose from the shared common purpose to shoot and be shot at (at [64] (Lords Phillips and Judge)). But even in Gnango establishing this agreement and thus the encouragement to shoot was difficult to justify on the facts. Gnango’s shooting at Bandana Man might be characterised as provocation rather than encouragement of a gun fight (see Lord Dyson, at [101]) and it is difficult to construct a spontaneous agreement merely from the coincident intention to fire at each other (Lord Kerr, at [121]). Establishing encouragement to shoot from a spontaneous agreement is even more artificial in Seed where, since A probably fired the first shot, it is difficult to see how the Reds had encouraged this, save by the fact that they had driven into the Blues’ territory, and they were anyway seeking an ambush so were not intending to encourage the Blues to shoot at them.

But is this focus on agreement to establish encouragement even necessary after Jogee? Whilst the Supreme Court’s focus in Jogee was to clarify the mens rea for accessorial liability, the court also rejected any distinct doctrine of joint enterprise liability (also known as “parasitic accessorial liability”) and emphasised that accessorial liability also requires proof of a conduct element, namely assistance or encouragement. Crucially, it was recognised that secondary liability does not require there to be an agreement between the principal and accessory to commit a crime (at [78]), but where there is such an agreement it will constitute a form of encouragement. Further, the court recognised that “where people come together without agreement, often spontaneously, to commit an offence together, the giving of intentional support by words or deeds, including by supportive presence, is sufficient to attract secondary liability on ordinary principles” (at [78]).

It follows from Jogee that the focus needs to be on the ordinary principles of secondary liability, which means establishing assistance or encouragement. Where there is an agreement between the parties to commit a crime, this can be regarded as encouraging, and even assisting, the crime. But there is no need to direct the jury to find an artificial agreement where there are spontaneous acts of violence. Encouraging murder might still be established because of the common purpose of the parties to participate in a gun fight. It is this common purpose which, to use the language deployed in Jogee, constitutes a “joint venture” or a “joint criminal enterprise”. Or, more simply, a “joint enterprise”. This is not to use that phrase as a legal term of art. Rather it is a useful description of a scenario where two parties have a common purpose without an agreement, but where it is still legitimate to infer that the accessory encouraged the principal to commit murder.

But even though a joint enterprise to shoot and be shot at may provide a means of establishing encouragement, in some gunfights it will not be possible to establish the common purpose, such as where D1 intended to ambush D2 without giving D2 an opportunity to shoot back. If D2 did then shoot back and killed a third party, might D1 still be liable for homicide? It might be possible to show that D1’s firing at D2 caused D2 to fire back, such that D1 is a joint principal, following Pagett (1983) 76 Cr App R 279, although it is more likely that D2’s shot will be considered to have broken the chain of causation, especially in the context of a shoot-out between gangs. In most cases of gunfight killings, therefore, D1’s liability can only be as an accessory. Once Gnango is refracted through the prism of Jogee it is clear that ordinary principles of accessorial liability apply, with a focus on encouragement. Proof of an agreement will assist in establishing this, but there is no need to focus the jury’s attention on finding an artificial agreement especially in cases of spontaneous killing. It is here that finding a “joint enterprise” might be sufficient to infer encouragement. If even that cannot be proved, then accessorial liability cannot be established. And, as subsequently confirmed by the Court of Appeal in ARU, ACC, BHL [2024] EWCA Crim 1101, it will be a rase case where a common purpose to shoot and be shot at (or to stab and be stabbed) can be established.