Abstract/Summary

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]… which nobody in the 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’s acts that are sufficiently 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.