[2026] EWCA Crim 849 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM (HIS HONOUR JUDGE ANDREW SMITH KC) (20BW1468725) CASE NO: 202503632 B1 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(Lord Justice Edis)
MR JUSTICE GOOSE
HIS HONOUR JUDGE CONRAD KC
PRONOUNCEMENT OF AN APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT
REX
v
KIMANI DURRELL-SMITH
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_________
PRONOUNCEMENT
THE VICE-PRESIDENT, LORD JUSTICE EDIS:
In this case judgment was handed down remotely on 17 April 2026 and is to be found at [2026] EWCA (Crim) 463. By that judgment, the court granted leave to appeal against conviction but dismissed that appeal. The order of the court was then drawn up reflecting those decisions but also recording that the court had certified, in accordance with section 33(2) of the Criminal Appeal Act 1968, that its decision involved a point of law of general public importance which is one which ought to be considered by the Supreme Court but refused leave to appeal to the Supreme Court and granted the usual representation order in the circumstances.
Those decisions, consequent upon the decision in the substantive appeal itself, ought not to have been recorded in the order in the way that they were. The practice is that decisions on the certification of a point of law of general public importance and on leave to appeal are pronounced in open court. That is what is taking place today, 14 May 2026. It is at this moment that those decisions become orders of the court. That is important because of the time limit for making an application for leave to appeal to the Supreme Court which starts from now rather than 17 April 2026. By way of explanation, I should add that the judgment was handed down rather more quickly than otherwise might have been the case because the court was informed that the Crown Court intended to proceed to sentence in this case on that day, 17 April 2026.
I therefore pronounce on behalf of the constitution of the court which dealt with the appeal that the court certifies a point of law of general public importance in these terms:
"QUESTION: If D1 and D2 exchange gun fire, each intending at least to cause the other really serious bodily harm, and one of D1's shots hits an innocent bystander, V, what are the circumstances in which D2 would be criminally liable for the injury to V following the correction in R v Jogee [2016] UKSC 8; [2016] UKPC 7 to the wrong turn taken in the law on joint enterprise that prevailed at the time that R v Gnango [2011] UKSC 59 was decided?"
Having certified that point, as I have explained, the court decided that it would refuse leave to appeal to the Supreme Court, which it now does. The court grants representation orders to the applicant for one junior counsel and solicitors for the purpose of an application to the Supreme Court for leave to appeal to that court, and King's Counsel, junior counsel and solicitors if leave be granted by that court.
This short pronouncement will be transcribed, please, and given a Neutral Citation number and sent to the National Archives as other judgments of this court are.
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