Homicide convictions upheld and limits of the principle of Overwhelming Supervening Act emphatically restated by the Court of Appeal
Tashan Daniel was a talented 20 year old athlete who was stabbed to death at Hillingdon Underground Station on 24 September 2019. In August 2020, following a trial at the Central Criminal Court, Alex Lanning and Jonathan Camille were convicted respectively of his murder and manslaughter.
Last month, the Court of Appeal upheld those convictions. In doing so, the court considered the application of the principle of Overwhelming Supervening Act (‘OSA’) and its development through the courts since the landmark decision of the Supreme Court in R v Jogee  UKSC 8.
The stabbing of Tashan Daniel occurred during an outbreak of spontaneous violence at the station. Lanning had exchanged words with Tashan Daniel and his friend, Treyone Campbell, who were on the opposite platform across the train tracks. After a few seconds, Lanning crossed the footbridge linking the platforms to confront the pair. As he did so he was joined by Camille. Lanning and Camille immediately confronted Tashan Daniel and Treyone Campbell. The assault itself lasted a matter of seconds: Lanning struck the first blow, punching Campbell. A fight ensued, and then split into two parts, with Lanning facing off against Tashan Daniel and Camille against Treyone Campbell. Lanning pulled out a knife delivered a fatal blow, stabbing Tashan Daniel in the chest. Almost immediately after the fatal blow was delivered, Lanning and Camille ran from the station. Together, they concealed their bloodstained clothes, and the knife, in a nearby housing estate. The two men were arrested two weeks later.
Overwhelming Supervening Act
The principle of OSA limits the liability of secondary parties in homicide cases where the actions of the principal are sufficiently extraordinary to break the chain of causation between the two parties. Per paragraph 97 of Jogee:
“97. The qualification […] is that it is possible for death to be caused by some overwhelming supervening act by the perpetrator 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; in that case the defendant will bear no criminal responsibility for the death.
98. This type of case apart, there will normally be no occasion to consider the concept of “fundamental departure” as derived from English. What matters is whether D2 encouraged or assisted the crime, whether it be murder or some other offence. He need not encourage or assist a particular way of committing it, although he may sometimes do so. In particular, his intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in his possession. The tendency which has developed in the application of the rule in Chan Wing-Siu to focus on what D2 knew of what weapon D1 was carrying can and should give way to an examination of whether D2 intended to assist in the crime charged. If that crime is murder, then the question is whether he intended to assist the intentional infliction of grievous bodily harm at least, which question will often, as set out above, be answered by asking simply whether he himself intended grievous bodily harm at least. Very often he may intend to assist in violence using whatever weapon may come to hand. In other cases he may think that D1 has an iron bar whereas he turns out to have a knife, but the difference may not at all affect his intention to assist, if necessary, in the causing of grievous bodily harm at least. Knowledge or ignorance that weapons generally, or a particular weapon, is carried by D1 will be evidence going to what the intention of D2 was, and may be irresistible evidence one way or the other, but it is evidence and no more.”
At trial, it was argued on Camille’s behalf that the jury ought to be required to answer the question as to whether the production and use of the (unknown) knife by Lanning in the circumstances of spontaneous public violence constituted an OSA. The prosecution argued that it would be contrary to the developments in the law since R v Jogee to do so, those authorities having made clear that knowledge of a weapon was only relevant to the question of a secondary party’s intent. There was simply no evidential basis for the jury to conclude that an OSA existed. HHJ Dennis QC, the judge at first instance, agreed with prosecution.
The Court of Appeal (in a judgment delivered by the Vice President of the Court of Appeal) concluded that there was no evidential basis for the question of OSA to be left to the jury. Fulford LJ considered the development of the principle since Jogee in the subsequent cases of Tas  EWCA Crim 2603 and R v Harper  EWCA Crim 343. The Court endorsed the approach taken in those cases, each of which emphasised the limited circumstances in which the question of an OSA might genuinely arise.
Fulford LJ made the following observations in the light his review:
69. The fatal stabbing occurred in a public place, during an incident of violence involving four young men. The CCTV footage significantly supports the contention that this was a joint attack by AL and JC on the two victims. It would have been clear that AL was seeking an unnecessary confrontation with TD and TC, who had upset or angered him. AL and JC joined up and walked to the platform where the victims were standing. As the Crown suggest, “in today’s social climate”, or, as we would put it, bearing in mind that knives are produced in situations of this kind with a high degree of frequency leading to serious injury or death, the judge was entitled to conclude that there was an insufficient factual basis for a jury to conclude (adopting the language from Jogee at ), that “nobody in the defendant’s shoes could have contemplated” that the production and use of a knife in the joint attack might happen. It was open to the judge to determine that the production of the knife was not an event of such a character as to relegate JC’s acts of encouraging AL to assault the two victims to history (again, see Jogee at  …)
70. We stress that we consider it is essentially irrelevant in this regard that JC was unaware of the presence of the knife when he set out with AL to confront TD and TC, or that he did not have a history of carrying knives and he had not been associated with street gangs, given factors of that kind are not the central question. What matters instead is whether JC intended to assist AL in a crime where some physical harm would be caused to the victims…
71. The jury would have understood the issues of which they needed to be sure, and in particular whether JC assisted or encouraged AL in the assault and intended that some physical harm should be caused. Given that the effect of Jogee is that in cases of this kind knowledge of a weapon has been relegated to proof of intent, we do not consider that in the present context its production meant that an OSA should have been left to the jury. Indeed, the harm by AL could have been caused by forcing the victim to the ground or onto the railway tracks, so that he fatally hit his head. This wholly unnecessary fatality was a paradigm of rapidly escalating violence which was part of a joint enterprise attack. In the circumstances we are unpersuaded by this ground of appeal.
If there was any remaining doubt as to the strict limits placed on the application of the principle of OSA by the higher courts, it has surely now been dispelled. Although each case will turn on its own facts, the effect of the judgment appears to be further reinforcement of the restriction on the deployment of OSA by defendants in the significant proportion of homicide cases that involve spontaneous group violence in public between young men using weapons.