Newsflash Criminal Defence 22nd Nov 2018

R v Tas [2018] EWCA Crim 2603: manslaughter and joint enterprise post-Jogee

The Court of Appeal yesterday handed down a judgment dealing with the tricky issue of manslaughter following the Supreme Court’s decision in R v Jogee; Ruddock v The Queen [2016] UKSC 8. An appeal based on the concept of overwhelming supervening event was dismissed.

Ali Tas had been acquitted of murder and convicted of manslaughter. Two co-defendants, Mukeh Kawa and Donald Davies, were convicted of murder. In brief, the facts were these. Djojo Nsaka was stabbed to death in Wembley near his university halls of residence. The prosecution case was that Tas had acted as part of a joint enterprise with his co-accused. They had gone to the halls of residence because Kawa believed that one of the deceased’s friends, DT, had insulted him. Tas, Kawa and Davies asked a number of residents where DT was. Many gave evidence and there were differing accounts as to whether Tas acted aggressively. DT was not there. An argument developed between Kawa, Davies and DT’s girlfriend and ultimately they and Tas were asked to leave. When they left the building they saw DT, the deceased, and another friend, CB, drive by. They got into Tas’ car and drove around, searching the local area, until they found the deceased’s group, now on foot. Tas and the others left the car. Tas punched CB, who said that Tas also had a bottle (Tas denied this). CB ran off and was chased by Davies. Davies then chased DT away. Tas returned to the car while Kawa chased the deceased. Davies followed. Tas followed them in the car. Davies and Kawa cornered the deceased and Tas waited by them in the car. The deceased was fatally stabbed by Kawa. Kawa and Davies got back into Tas’ car. The deceased stood and then finally collapsed as Tas drove away.

The prosecution case was that the attack was planned and carried out in a determined fashion, using violence that escalated. Tas remained part of the joint enterprise at all times; when he returned to his car he continued to play his part by moving into position to provide a quick getaway. The defence case for Tas was that, at worst, Tas envisaged a fist fight and had withdrawn prior to the stabbing, which he did not foresee or intend.

Tas’ counsel invited the trial judge to direct the jury that they must be sure that Tas knew a knife was being carried by a co-defendant in order to convict him of manslaughter, because use of a hidden knife would have been a supervening act. The prosecution submitted that if a defendant takes part in a joint enterprise to do some harm to their victim and the victim dies as a result of the use of a weapon that the defendant was unaware of, he would nevertheless be guilty of manslaughter. The trial judge agreed with the prosecution. A route to verdict was provided. In relation to Tas, the questions were:

  1. Did Tas stab the deceased or participate in a joint enterprise in which he was stabbed – if no, acquit; if yes, go on to (2);
  2. Was Tas acting otherwise than in lawful self-defence – if no, acquit; if yes, go on to (3);
  3. Either as the stabber or as a participant in the joint enterprise, did Tas intend to kill the deceased or at least cause him really serious bodily harm if the need arose – if yes, guilty of murder; if no, go on to (4);
  4. Did Tas, as part of a joint enterprise, intend the deceased to be caused some harm falling short of really serious harm – if yes, guilty of manslaughter; if no, acquit.

On appeal, it was submitted on behalf of Tas that the jury should have been allowed to consider whether use of a knife took events beyond the scope of the joint venture.

The Court of Appeal (Sir Brian Leveson P, Jeremy Baker J, Goss J) took time to analyse the extent of the impact of the Jogee intention/foresight debate on the area of joint entierprise liability for murder. They discussed R v Smith (Wesley) [1963] 1 WLR 1200 in which it was held:

Manslaughter is unlawful killing without an intent to kill or do grievous bodily harm… He who intended only that the victim should be unlawfully hit and hurt will be guilty of manslaughter if death results.

The treatment of overwhelming supervening act in R v Anderson; R v Morris [1966] 2 QB 110 was considered in some detail. The Court emphasised that the test in that case was “more stringent than going beyond tacit agreement”. In Anderson it was said that where one person “has departed completely from the concerted action of the common design”:

Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked on as causative factors.

 The Court observed that any consideration of the scope of a joint enterprise must start at the beginning. In this case there was evidence on which the jury could conclude that the joint enterprise started with the visit to the halls of residence and included searching for the deceased’s group and, in the case of Tas, getting back in his car to take the others away from the scene. Following the route to verdict there was no doubt but that the jury were satisfied that there was a continuing joint enterprise. Tas’ conduct was

…not so distanced in time, place or circumstances from the conduct of [the principal] that it would not be realistic to regard [the principal’s] offence as encouraged or assisted by it.

The Court dismissed the argument that Tas’ case was identical to the facts in Anderson and the use of the knife was therefore an overwhelming supervening act. Anderson was not overruled in Jogee but Lord Toulson and Lord Hughes made it clear that the decision in Anderson involved “a charitable view of the facts”. The Court interpreted this as confirmation that

…although the principle was to be recognised, its application in that case was not to be taken as binding in other similar situations.

 The Court observed that Jogee had relegated knowledge of a weapon to proof of intention rather than a pre-requisite for murder, and held:

We do not accept that if there is no necessary requirement that the secondary party knows of the weapon in order to bring home a charge of murder (as is the effect of Jogee), the requirement of knowledge of the weapon is reintroduced through the concept of supervening overwhelming event for manslaughter.

Tas had taken the risk that the others involved in the joint enterprise with him would go further than to inflict some harm. There was no reason to distinguish his case from one where the victim is kicked to death or killed with a weapon that came to hand at the scene.

The Court emphasised:

It is important not to abbreviate the test articulated above, which postulates an act that “nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history”.

 An example was to be found in R v Rafferty [2007] EWCA Crim 1846 in which the secondary party took part in beating the victim, then took the victim’s debit card and left to obtain money, whereupon the principals drowned the victim in his absence. No jury could properly have concluded that the drowning of the victim was other than a new and intervening act in the chain of events.

The Court approved the formulation of the steps to verdict document, which required the jury to determine as a first step whether Tas was part of a joint enterprise in which the deceased was stabbed, which involved a confrontation sought by Tas and his friends, leading to an ongoing and moving street fight in which Tas followed the chase by car. Having set that critical first question the trial judge was entitled to conclude that there was insufficient evidence to raise the possibility that production of the knife was a wholly supervening event rather than a simple escalation. Such an assessment was very much for the trial judge, who has heard the evidence.

The appeal was dismissed.

Sarah Przybylska was instructed by Susan Egan and Emma O’Neill at the CPS Special Crime & Counter Terrorism Division Appeals and Review Unit


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