Overwhelming Supervening Acts, Fundamental Differences, and Back Again?
| Author | Beatrice Krebs |
| DOI | http://doi.org/10.1177/00220183221133440 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Overwhelming Supervening Acts,
Fundamental Differences,
and Back Again?
Beatrice Krebs
School of Law, University of Reading, Foxhill House, Shinfield Road, Reading, RG6 6AH, UK
Abstract
Jogee established that, if the victim was attacked in a manner different to that which the
accessory envisioned, the accessory will not be liable for a resulting death, provided the
fatal act amounted to ‘some overwhelming supervening act [OSA]…whichnobodyinthe
defendant’s shoes could have contemplated might happen and is of such a character as to
relegate his acts to history’.Jogee further suggests that OSA has replaced the fundamental
difference rule (FDR) which used to keep the foresight test in parasitic accessory liability
(PAL) cases in check, by absolving accessories of liability for murder or manslaughter,
where the principal had caused the victim’s death with a different and more lethal weapon
or in a different and more dangerous manner than had been foreseen by the accessory. In
Jogee, the UKSC appreciated this role of the FDR, and therefore, in a misguided attempt
to appease the defenders of PAL, abolished it along with PAL. While they left OSA in
place in its stead, the judgment is unclear about its scope, role, and function. Since then,
OSA has been considered on several occasions by the Court of Appeal. However, there
is still no clarity as to when OSA ought to be left to the jury. This paper will explore
OSA, its role, scope of application, and relationship with the FDR. It will be argued that
OSA is a concept of remoteness which, like the FDR before it, functions as a corrective
to constructive liability for accessories to murder and manslaughter. It aims to attribute
to the accessory only those consequences of the principal’sactsthataresufficiently linked
to the risk that the accessory set or supported by his acts of assistance or encouragement.
The paper concludes that, in fleshing out OSA, the courts ought to pay greater attention to
this role and purpose, and the principles of fair attribution that underpin it.
Keywords
Accessorial liability, accomplices, assistance and encouragement, causation, complicity,
fundamental difference rule, overwhelming supervening act, remoteness
Corresponding author:
Beatrice Krebs, School of Law, University of Reading, Foxhill House, Shinfield Road, Reading, RG6 6AH, UK.
Email: b.krebs@reading.ac.uk
Article
The Journal of Criminal Law
2022, Vol. 86(6) 420–440
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183221133440
journals.sagepub.com/home/clj
Introduction
Criminal incidents do not necessarily unfold as those involved expect. In English,
1
the appellant partici-
pated in a violent attack on a police officer. He thought that his co-offender might seriously injure the
victim by beating him with a wooden post. In the event, the co-offender fatally stabbed the victim
with a knife. In Gamble,
2
the defendants were charged with murder. They submitted that they had
expected the victim to be subjected to a punishment beating or ‘kneecapping’(which involves firing
bullets in the kneecap). In fact, the principal offenders deliberately killed the victim by slitting his
throat. In Tas,
3
the appellant expected to participate in a ‘punch-up’. He sought to have his manslaughter
conviction overturned on the basis that he had not known of the knife one of his group had used to kill one
of the opponents. In Grant,
4
the appellant was a passenger in a car that was driven around in search of two
men. He anticipated that they might be caused serious harm on foot during a face-to-face confrontation.
Instead, the driver ran both victims down, killing one of them in a deliberate hit and run attack.
Prior to Jogee, such scenarios attracted the application of the so-called fundamental difference rule
(FDR). Under the FDR, the actions of the principal offender (P) remained attributable to an accessory
(S) unless they were ‘of a type entirely different from actions which [S] foresaw as part of the
attack’.
5
In the context of murder,
6
the FDR was applied to cases where the common purpose of the prin-
cipal offender and his accessory was not to kill but to cause serious harm,
7
and had the effect that the
accessory was not liable for murder if the direct cause of the victim’s death was a deliberate act by
the principal which was of a kind, firstly, unforeseen by the accessory and, secondly, likely to be
altogether more life-threatening than acts of the kind intended or foreseen by him.
8
In Jogee, the Supreme Court considered that the main role of the FDR was to put boundaries on the
foresight test in parasitic accessory liability (PAL),
9
absolving accessories of liability for the victim’s
death where the principal had caused it with a different and more lethal weapon or in a different and
more dangerous manner than had been foreseen by the accessory. With the abolition of PAL, their
Lordships considered that the need for a limiting principle such as the FDR was much reduced:
10
the
accessory would now only be liable if the prosecution could prove that he had intended (to assist or
encourage) the assault that resulted in death; mere foresight would no longer suffice. However, the
Supreme Court still saw some scope for a narrower limiting principle –while abolishing the FDR,
they left in place the so-called overwhelming supervening act principle (OSA) to fulfil that function.
After Jogee, the fatal use of a hidden knife or murderous car-attack when a serious beating or fistfight
had been expected will absolve an accessory of liability for death only if this was ‘caused by some
6. While much of the relevant case law is concerned with an accessory’s liability for murder, the FDR could also apply to man-
slaughter, see Uddin [1999]QB 431 (CA) 441 (Beldam LJ): ‘If the jury conclude that the death of the victim was caused by the
actions of one participant which can be said to be of a completely different type to those contemplated by the others, they are not
to be regarded as parties to the death whether it amounts to murder or manslaughter.’
7. Yemoh [2009]EWCA Crim 930 at [134]-[136]; Mendez and Thompson [2010]EWCA Crim 516, [2011]QB 876 at [44].
9. This view is also taken in David Ormerod and Karl Laird (eds) Smith, Hogan, & Ormerod’s Criminal Law (16
th
edn, OUP
2021) 219 which states: ‘Under the law prior to Jogee …D’s liability was satisfied on the basis of proof of foresight that P
might kill with intent to kill or do GBH. That was such a broad and harsh doctrine that it was appropriate to temper it
where P’s conduct was so different from what D foresaw—even though D had foreseen at least GBH’. See also Lord
Bingham in Rahman [2008]UKHL 45 at [16] who observed that the significance of the decision in English [1999] 1 AC 1
‘lies in the emphasis it laid (a) on the overriding importance in this context of what the particular defendant subjectively
foresaw, and (b) on the nature of the acts or behaviour said to be a radical departure from what was intended or foreseen’.
Krebs 421
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