R v Kyle Neil Smith & Anor

A participant in a joint violent attack may be guilty of manslaughter where the attack objectively carried a risk of some harm and death results. The exception for an overwhelming supervening act is narrow. It applies only where the later act was beyond the contemplation of anyone in the defendant’s position and so extraordinary that it relegates the participant’s conduct to history; a mere escalation of the violence does not suffice.

Notice of an appeal against conviction must be given within 28 days of conviction, even where sentence is adjourned, under the Criminal Appeal Act 1968.

The applicants, brothers Kyle and Bernie Smith, were convicted of manslaughter after Craig Robins died in 2019 from injuries sustained during a violent incident in 2006. Gavin Brown took a knife held by Mr Robins and stabbed him. Brown later pleaded guilty to murder. The applicants had pleaded guilty to violent disorder in 2007, while Mr Robins was alive, but contested the later manslaughter charges.

At trial, Kyle Smith relied on self-defence and defence of others, while Bernie Smith denied participation. The trial judge declined to leave to the jury whether Brown’s stabbing was an overwhelming supervening act. The applicants sought an extension of time and leave to appeal against conviction. The central issue was whether the stabbing could have relegated their own violent conduct to history for the purposes of joint-enterprise manslaughter.

1. The court refused the applications for an extension of time and for leave to appeal against conviction. The proposed appeal had no prospect of success because the convictions were safe.

2. Under R v Jogee [2016] UKSC 8, a person who participates in a violent attack, or intentionally assists or encourages an unlawful act which objectively carries a risk of some harm, is guilty of manslaughter if death results, absent the intent required for murder. The narrow qualification is an overwhelming supervening act which no person in the defendant’s position could have contemplated and which relegates the defendant’s conduct to history.

3. R v Tas [2018] EWCA Crim 2603 confirmed that lack of prior knowledge of the particular weapon does not supply a prerequisite for manslaughter. Whether there is a sufficient evidential basis for an overwhelming supervening act is initially for the trial judge, who must distinguish such an event from an escalation within the joint enterprise.

4. The applicants participated in a group attack and used violence against Mr Robins. They knew that they outnumbered him and that he had a machete. It was not beyond contemplation that an attacker would gain control of it and use it against him. Brown’s stabbing was an escalation of the joint enterprise, not an overwhelming supervening act. The judge was therefore entitled, and correct, not to leave that issue to the jury.

5. The applicants’ earlier guilty pleas to violent disorder also engaged section 74 of the Police and Criminal Evidence Act 1984. Each was to be taken to have committed that offence unless the contrary was proved on the balance of probabilities. The evidence and the statutory consequence supported the jury’s findings of unlawful participation.

6. By section 18(2) of the Criminal Appeal Act 1968, notice of an appeal against conviction is due within 28 days of conviction, irrespective of a later sentencing hearing. The court accepted that counsel’s collective error should not prejudice the applicants, but an extension was unnecessary because the grounds lacked merit.

• Court of Appeal (Criminal Division). In [2022] EWCA Crim 1808, the court refused applications for an extension of time and for leave to appeal against the manslaughter convictions.

• Crown Court (not otherwise identified). Following Mr Robins’s death in 2019, the applicants were tried for manslaughter before Her Honour Judge Montgomery KC and convicted. In 2007, while Mr Robins was alive, they had pleaded guilty to violent disorder arising from the same incident.