R v Lamb
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS |
| Judgment Date | 22 June 1967 |
| Judgment citation (vLex) | [1967] EWCA Crim J0622-3 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 3939/66 |
| Date | 22 June 1967 |
[1967] EWCA Crim J0622-3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Sachs
Mr. Justice Lyell
and
Mr. Justice Geoffrey Lane
No. 3939/66
MR. JAMES COMYN, Q.C. and MR. J. LLOYD-ELY appeared as Counsel for the Appellant.
MR. J. C. MATHEW appeared as Counsel for the Crown.
On the 24th November 1966 the appellant was convicted of manslaughter at the Central Criminal Court and sentenced to 3 years' imprisonment. He appealed against conviction by leave of the single Judge and his appeal was heard on the 12th and 13th of this month. The Court then quashed the conviction and stated that the reasons would be given later.
The issues lay within a narrow compass, for both Counsel agreed that neither at the trial nor in this Court was there any dispute as to the facts. The appellant, aged 25, had become possessed of a Smith & Wesson revolver. It was a revolver in the literal old fashioned sense, having a 5-chambered cylinder which rotated clockwise each time the trigger was pulled. The appellant, in jest, with no intention to do any harm, pointed the revolver at the deceased, his best friend, when it had 2 bullets in the chambers but neither bullet was in the chamber opposite the barrel. His friend was similarly treating the incident as a joke. The appellant then pulled the trigger and thus killed his friend, still having no intention to fire the revolver. The reason why the pulling of the trigger produced this fatal result was that its pulling rotated the cylinder and so placed a bullet opposite the barrel so that it was struck by the striking pin or hammer.
The appellant's defence was that as neither bullet was opposite the barrel he thought they were in such cylinders that the striking pin could not hit them; that he was unaware that the pulling of the trigger would bring one bullet into the firing position opposite the barrel; and that the killing was thus an accident. There was not only no dispute that this was what he in fact thought, but the mistake he made was one which 3 experts agreed was natural for somebody who was not aware of the way the revolver mechanism worked. Those witnesses were all called for the prosecution and included the Senior Experimental Officer at the Metropolitan Police Laboratory.
The defence of accident was, however, in effect withdrawn from the Jury by the trial Judge in a manner which will be further examined in this judgment. Indeed the trial Judge made no mention of the word accident in his summing-up nor of the evidence of the experts save that he at one stage directed the Jury that their evidence was not relevant.
The general effect of the summing-up was that a verdict of guilty could be returned on either or both of two grounds as follows: "It is manslaughter if death results from an unlawful and dangerous act on the part of the accused. It is also manslaughter if death results from an extreme degree of carelessness, negligence, on the part of the accused. Those are both grounds on which manslaughter can be found. It is quite possible that to some extent they overlap…..".
As regards the first of those grounds, which was pressed upon the Jury very strongly indeed, in the course of his summing-up, the trial Judge no doubt founded himself on that part of the judgment of Mr. Justice Edmund Davies (as he then was) in Church's case, 49 C.A.R., when at p.213 he says: "The unlawful act must be such as all sober and reasonable people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm".
Unfortunately, however, ho fell into error as to the meaning of the word "unlawful" in that passage and pressed upon the Jury a definition with which experienced Counsel for the Crown had disagreed during the trial and which he found himself unable to support on the appeal. The trial Judge took the view that the pointing of the revolver and the pulling of the trigger was something which could of itself be unlawful even if there was no attempt to alarm or intent to injure. This view is exemplified in a passage in his judgment which will be cited later.
It was no doubt on this basis that he had before commencing his summing-up stated that he was not going to: "involve the Jury in any consideration of the niceties of the question whether or not the" action of the "accused did constitute or did not constitute an assault"; and thus he did not refer to the defence of accident or the need for the prosecution to disprove accident before coming to a conclusion that the act was unlawful.
Mr....
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