page 86

University of London International Programmes

16 Extract of the judgment from Lamb [1967] 2 All ER 1282

This material relates to the Criminal law subject guide, Chapter 7.

Criminal law Study pack page 87

Extract from Lamb [1967] 2 All ER 1282

Sachs J: The appellant, aged twenty-five, had become possessed of a Smith & Wesson
revolver. It was a revolver in the literal old fashioned sense, having a five-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 two 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...

In the course of his summing-up, the trial judge no doubt founded himself on that part
of the judgment of Edmund Davies J in R v Church ([1965] 2 All ER 72 at p 76; [1966] 1 QB
59 at p 70), where he said:

… the unlawful act must be such as all sober and reasonable people would inevitably
recognise must subject the other person to, at least, the risk of some harm resulting
therefrom, albeit not serious harm.

Unfortunately, however, he fell into error as to the meaning of the word ‘unlawful’ in
that passage...[and] 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 were
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
appellant] 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.

Counsel for the Crown, however, had at all times put forward the correct view that
for the act to be unlawful it must constitute at least what he then termed ‘a technical
assault’. In this court, moreover, he rightly conceded that there was no evidence to
go to the jury of any assault of any kind. Nor did he feel able to submit that the acts of
the appellant were on any other ground unlawful in the criminal sense of that word.
Indeed no such submission could in law be made: if, for instance, the pulling of the
trigger had had no effect because the striking mechanism or the ammunition had
been defective no offence would have been committed by the appellant.

Another way of putting it is that mens rea being now an essential ingredient in
manslaughter (compare Andrews v Director of Public Prosecutions ([1937] 2 All ER 552
at pp 555, 556; [1937] AC 576 at p .82) and R v Church ([1965] 2 All ER at p.76; [1966] 1 QB
at p.70)) this could not in the present case be established…except by proving that
element of intent without which there can be no assault.

It is perhaps as well to mention that when using the phrase ‘unlawful in the criminal
sense of that word’ the court has in mind that it is long settled that it is not in point to
consider whether an act is unlawful merely from the angle of civil liabilities. That was
first made clear in R v Franklin.

Appeal allowed. Conviction quashed.