R v Callum Ayre & Ors

An overwhelming supervening act will relieve a secondary party of liability only where the principal’s act was beyond anything that person could have contemplated and was so overwhelming that the earlier encouragement or assistance is properly relegated to history. The inquiry concerns intentional encouragement and assistance, rather than causation or remoteness. It does not require that the secondary party intended a particular method or weapon.

Where a continuing shared intention to use unlawful violence is carried into effect by the principal, a change in the method of attack will not ordinarily justify an overwhelming-supervening-act direction. Cases in which the issue should be left to a jury will be rare, and the trial judge must first decide whether there is sufficient evidence for it to arise.

Following a jury trial at the Crown Court at Warwick, Ayre, Henneberry and Tomlinson were convicted of manslaughter, maliciously inflicting grievous bodily harm, and two assaults occasioning actual bodily harm. The convictions arose after a car carrying the defendants pursued and struck a group of pedestrians, killing one and seriously injuring another.

The appellants contended that the driver’s use of the car was an overwhelming supervening act which broke any connection between their earlier conduct and the offences. They also challenged the refusal of submissions of no case to answer, the refusal to leave that issue to the jury, and the jury directions concerning a plan to use the car as a weapon.

1. The appeals were dismissed. The court granted Henneberry and Tomlinson leave to appeal because their arguments were common to Ayre’s appeal, but held that none of the four grounds disclosed an error.

2. Applying R v Jogee [2016] UKSC 8, secondary liability depends on intentional encouragement or assistance and an intention to assist the principal to act with the mental element required by the offence. It is unnecessary for the secondary party to have intended that the offence be committed by a particular method. The court agreed with R v Grant [2021] EWCA Crim 1243 that the circumstances in which an overwhelming supervening act, or a departure from an agreed plan, requires jury consideration are rare.

3. The evidence entitled the jury to find that the appellants set off in the car under a continuing shared plan to confront and use unlawful violence against the other group. The earlier threats, the rapid pursuit, and the carrying of weapons supported that conclusion. The driving into the pedestrians did not relegate the appellants’ conduct to history or destroy its material connection with the violence. The issue of overwhelming supervening act therefore did not arise.

4. The judge was also correct not to leave that issue to the jury. As stated in R v Tas [2018] EWCA Crim 2603, the judge decides whether the evidence is sufficient for the issue to be left. Nor was a conviction dependent on proof of a specific agreement to use the car as a weapon. The route to verdict correctly focused on whether each appellant intended to encourage or assist the relevant crime. The court declined to certify questions for the Supreme Court.

• Court of Appeal (Criminal Division) The court granted Henneberry and Tomlinson leave to appeal, dismissed all three appeals against conviction, and declined to certify questions for the Supreme Court.
• Crown Court at Warwick Before His Honour Judge Lockhart KC, a jury convicted Ayre, Henneberry and Tomlinson of manslaughter, maliciously inflicting grievous bodily harm, and two assaults occasioning actual bodily harm.