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Transferred malice key to liability for murder

In Gnango [2011 UKsC 59] the supreme Court was asked to consider the criminal liability of the Respondent for the tragic death of a Polish care worker called Magda Pniewska. Miss Pniewska was aged 26 when she was shot dead when walking home from work in October 2007. Miss Pniewska had been shot by a male (BM) who was never identified and thus not charged with her murder. BM had been engaged in a gunfight with the Respondent G. Though it was accepted by all parties that BM had fired the fatal shot, G was convicted of her murder. A five man Court of Appeal [2010 EWCA 1691] quashed his conviction and the Crown petitioned the supreme Court on the question of the criminal liability of G in such circumstances. The supreme Court upheld the Crowns appeal (Lord Kerr dissenting) holding G to be liable for the murder of Miss Pniewska. Lord Phillips and Lord Judge (with whom Lord Wilson agreed) held Gs liability to be founded in a secondary capacity. On their analysis, G had aided and abetted his owned attempted murder by procuring BM to shoot at him (as in a duel) and was thus responsible for the murder of Miss Pniewska under the settled doctrine of transferred malice (if A shoots at B but accidentally kills C then A is guilty of the murder of C). Lord Brown and Lord Clarke felt it unnecessary to consider Gs liability in a secondary capacity as both found G to be guilty of the murder in a primary capacity as a direct participant of unlawful agreement to cause serious injury or death. Lord Clarke went further to suggest that G was directly responsible for the death of Miss P by firing at BM and procuring him to fire the fatal shot. The judgments are fascinating.


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