R v Clegg [1995] UKHL 1 (19 January 1995)

Regina

Clegg (Appellant)
(On Appeal from the Court of Appeal in Northern Ireland)

JUDGMENT

Die Jovis 19° Januarii 1995

Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Clegg, That the Committee had
heard Counsel as well on Wednesday the 9th as on Thursday the
10th days of November last upon the Petition and Appeal of Lee
William Clegg currently detained at Her Majesty’s Prison,
Wakefield, praying that the matter of the Order set forth in the
first Schedule thereto, namely an Order of Her Majesty’s Court
of Appeal in Northern Ireland of the 30th day of March 1994,
might be reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied or
altered or that the Petitioner might have such other relief in
the premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet; as upon the case of the Director of
Public Prosecutions in Northern Ireland (on behalf of Her
Majesty) lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side in
this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of Appeal
in Northern Ireland of the 30th day of March 1994 complained of
in the said Appeal be, and the same is hereby, Affirmed and that
the said Petition and Appeal be, and the same is hereby,
dismissed this House: And it is further Ordered, That the
certified question be answered as follows:

“On the facts stated and assuming no other defence is
available, the soldier or police officer will be guilty of
murder and not manslaughter.”

Cler: Parliamentor:

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE

REGINA

CLEGG

(APPELLANT)

(NORTHERN IRELAND)

ON 19TH JANUARY 1995

Lord Keith of Kinkel
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Lloyd of Berwick
Lord Nicholls of Birkenhead

LORD KEITH OF KINKEL

My Lords,

For the reasons given in the speech to be delivered by my noble and
learned friend Lord Lloyd of Berwick, which I have read in draft and with
which I agree, I would dismiss this appeal, and answer the certified question
as he proposes.

LORD BROWNE-WIKINSON

My Lords,

For the reasons given in the speech of my noble and learned friend
Lord Lloyd of Berwick I too would dismiss the appeal.

LORD SLYNN OF HADLEY

My Lords,

I have had the advantage of reading in draft the speech to be given by
my noble and learned friend Lord Lloyd of Berwick. I agree that for the
reasons he gives the appeal should be dismissed.

– 1 –

LORD LLOYD OF BERWICK

My Lords,

On the night of 30 September 1990 the appellant, Lee William Clegg,
a soldier serving with the Parachute Regiment, was on patrol in Glen Road,
West Belfast, when the driver of a stolen car and one of his passengers were
shot and killed. Private Clegg was charged with murder of the passenger, and
attempted murder of the driver. His defence was that he fired in self-defence.
He was convicted on 4 June 1993, after a trial before Campbell J. without a
jury. His appeal to the Court of Appeal was dismissed. The Court of Appeal
held that the firing of the shot which killed the passenger was, on the facts
found by the judge, a grossly excessive and disproportionate use of force, and
that any tribunal of fact properly directed would so have found. The certified
question of law for your Lordships is whether a soldier on duty, who kills a
person with the requisite intention for murder, but who would be entitled to
rely on self-defence but for the use of excessive force, is guilty of murder or
manslaughter.

The patrol consisted of 15 men under the command of Lieutenant
Oliver. It was accompanied by a police constable from the Royal Ulster
Constabulary. The purpose of the patrol was to catch joyriders. But this was
not explained to Private Clegg. The patrol was divided into 4 teams or
“bricks.” Brick 11 formed a vehicle checkpoint at a bridge on the Glen Road
about 6 miles west of Belfast. Brick 10A, consisting of Lieutenant Oliver,
Private Clegg, Private Aindow and another, were moving down the road
towards Belfast. Private Aindow was on the right hand side of the road. The
others were all on the left hand side. Bricks 12 and 14 were still further
down the road, around a corner. As the stolen car approached the bridge
from the west, it was stopped by a member of Brick 11. The car then
accelerated away in the centre of the road towards Brick 10A with its
headlights full on. Someone in Brick 11 shouted to stop it. All four members
of Brick 10A fired at the approaching car. Private Clegg’s evidence was that
he fired three shots at the windscreen, and a fourth shot into the side of the
car as it was passing. He then replaced his safety catch. According to
Private Clegg he fired all four shots because he thought Private Aindow’s life
was in danger. However, scientific evidence showed, and the trial judge
found as a fact, that Private Clegg’s fourth shot was fired after the car had
passed, and was already over 50 feet along the road to Belfast. It struck a
rear-seat passenger, Karen Reilly, in the back. It was later found lodged
beneath her liver. The judge found that Private Clegg’s fourth shot was an
aimed shot fired with the intention of causing death or serious bodily harm.
Although another bullet passed through Karen Reilly’s body, Private Clegg’s
fourth shot was a significant cause of her death.

In relation to the first three shots, the judge accepted Private Clegg’s
defence that he fired in self-defence or in defence of Private Aindow. But
with regard to the fourth shot he found that Private Clegg could not have been

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firing in defence of himself or Private Aindow, since, once the car had
passed, they were no longer in any danger.

Having rejected Private Clegg’s defence in relation to the fourth shot,
the judge went on to consider, as was his duty, whether there was any other
defence open on the evidence, even though Private Clegg had not raised the
defence himself. One possible defence was that Private Clegg fired the fourth
shot in order to arrest the driver. Section 3(1) of the Criminal Law Act
(Northern Ireland) 1967 provides:

“A person may use such force as is reasonable in the circumstances in
the prevention of crime, or in effecting or assisting in the lawful arrest
of offenders or suspected offenders or of persons unlawfully at large.”

The judge held that there was insufficient evidence to raise such a defence.
Accordingly he convicted Private Clegg of murder.

When the case reached the Court of Appeal, the court reviewed the
whole of Private Clegg’s evidence. In a number of his answers he had said
that he fired to stop the driver of the car after it had, as he thought, struck
Private Aindow. Accordingly there was, in the court’s view, evidence on
which the judge should have considered the defence under section 3 of the Act
of 1967.

It should be noted in passing that the car did not, in fact, strike Private
Aindow. The judge held that bruising found on Private Aindow’s left leg was
caused, not by the car, but by another soldier stamping on him in order to
create the appearance that he had been struck by the car. In those
circumstances, Private Aindow was charged with perverting the course of
justice as well as attempted murder. He was convicted on the former count
and sentenced to two years’ imprisonment. His appeal on that count was
dismissed.

Having held that there was evidence to raise the defence under section
3, the Court of Appeal went on to consider whether any miscarriage of justice
had actually occurred by reason of the failure of the judge to consider that
defence. Section 3 of the Act of 1967 allows a person to use “such force as
is reasonable in the circumstances . . .”. So the question for the Court of
Appeal was whether Private Clegg, in firing the fourth shot, used only such
force as was reasonable in the circumstances, or whether the force which he
used was excessive.

In the course of his cross examination Private Clegg was asked
whether he was aware of any circumstances which would have justified him
in firing after the car had passed. He replied that he had no reason to fire at
that stage.

– 3 –

“Q.29: And if you had fired any more you know of no

justification for that action?”

“A.29: That’s correct. That’s why I applied my safety catch as

the car went past me.”

There was no suggestion in Private Clegg’s evidence, as the Court of Appeal
pointed out, that he thought that the driver was a terrorist, or that if the driver
escaped he would carry out terrorist offences in the future. In those
circumstances the use of lethal force to arrest the driver of the car was, in the
court’s view, so “grossly disproportionate to the mischief to be averted” that
any tribunal of fact would have been bound to find that the force used was
unreasonable. It followed that if the defence under section 3 had been raised,
which it was not, it would have failed. Accordingly, Private Clegg’s appeal
was dismissed.

At the conclusion of the judgment delivered by the Lord Chief Justice
of Northern Ireland, the court took the opportunity to make two important
observations. The first relates to the so-called Yellow Card. That card is
entitled “Instructions for opening fire in Northern Ireland.” Paragraph 5
provides:

“You may only open fire against a person:

a) If he is committing or about to commit an act likely to
endanger life, and there is no other way to prevent the danger.
The following are some examples of acts where life could be
endangered, dependent always upon the circumstances:

i) firing or being about to fire a weapon;

ii) planting, detonating or throwing an explosive device
(including a petrol bomb);

iii) deliberately driving a vehicle at a person and there is no
other way of stopping him.

b) If you know that he has just killed or injured any person
by such means and he does not surrender if challenged and
there is no other way to make an arrest.”

The court observed that on the literal application of paragraph 5(b) read with
paragraph 5(a)(iii) a soldier would be justified in opening fire where a person
had been injured by a car, irrespective of the seriousness of the injury. The
court considered it desirable for the army authorities to re-draft the Yellow
Card to make it clear that a minor injury caused by a car does not justify a
soldier in opening fire. The court’s first observation does not call for any

– 4 –

further comment from your Lordships. It is not suggested that the Yellow
Card has any legal force.

It is the second observation which has given rise to the certified
question of law. So it is desirable to quote what the court had to say in full.

“A further observation which we wish to make is this. The
trial judge found that the fourth shot fired by Private Clegg killed
Karen Reilly and that he had no legal justification for firing that shot.
Under the existing law, having found that Private Clegg fired that shot
with intent to kill or cause grievous bodily harm, the trial judge was
obliged to find Private Clegg guilty of the heinous crime of murder
which carries a mandatory sentence of life imprisonment, and it was
not open to the judge to find Private Clegg guilty of the lesser crime
of manslaughter where the judge can sentence the accused to the period
of imprisonment which he considers appropriate in all the
circumstances of the crime.

“There is one obvious and striking difference between Private
Clegg and other persons found guilty of murder. The great majority
of persons found guilty of murder, whether they are terrorist or
domestic murders, kill from an evil and wicked motive. But when
Private Clegg set out on patrol on the night of 30 September 1990 he
did so to assist in the maintenance of law and order and we have no
doubt that as he commenced the patrol he had no intention of
unlawfully killing or wounding anyone. However, he was suddenly
faced with a car driving through an army checkpoint and, being armed
with a high velocity rifle to enable him to combat the threat of
terrorism, he decided to fire the fourth shot from his rifle in
circumstances which cannot be justified and the firing of his fourth
shot was found to be unlawful.

“It is right that Private Clegg should be convicted in respect of
the unlawful killing of Karen Reilly and that he should receive a just
punishment for committing that offence which ended a young life and
caused great sorrow to her parents and relatives and friends.

“But this court considers, and we believe that many other fair-
minded citizens would share this view, that the law would be much
fairer if it had been open to the trial judge to have convicted Private
Clegg of the lesser crime of manslaughter on the ground that he did
not kill Karen Reilly from an evil motive but because, his duties as a
soldier having placed him on the Glen Road armed with a high
velocity rifle, he reacted wrongly to a situation which suddenly
confronted him in the course of his duties. Whilst it is right that he
should be convicted for the unlawful killing of Karen Reilly, we
consider that a law which would permit a conviction for manslaughter

– 5 –

would reflect more clearly the nature of the offence which he had
committed.”

In the light of that observation the court concluded that Parliament should
consider making a change in the existing law. The certified question arising
out of the second observation is as follows:

“Where a soldier or police officer in the course of his duty kills a
person by firing a shot with the intention of killing or seriously
wounding that person and the firing is in self-defence or in defence of
another person, or in the prevention of crime, or in effecting or
assisting in the lawful arrest of offenders or suspected offenders or of
persons unlawfully at large, but constitutes force which is excessive
and unreasonable in the circumstances, is he guilty of manslaughter
and not murder?”

The certified question can be considered under the following heads:

1. 1. Does the existing law allow a verdict of manslaughter instead of
    murder where the force used in self-defence is excessive?
  2. Is the position the same where the excessive force is used in prevention
    of crime or in effecting or assisting in the lawful arrest of offenders?
  3. Is there any difference between the position of a soldier or police
    officer acting in the course of his duty, on the one hand, and an ordinary
    member of the public on the other?
  4. If a verdict of manslaughter is not available under the existing law in
    any of the above cases, is it open to this House to change the law?

The existing law

Strictly speaking, the first of the above issues does not arise on the
facts of the present case. Since the danger had already passed when Private
Clegg fired his fourth shot, there could be no question of self-defence, and
therefore no question of excessive force in self-defence. But it is convenient
to deal with this issue all the same, since it forms the background to the
remaining issues.

The starting point is the Report of the Royal Commission appointed to
consider the law relating to indictable offences: (1879) 36 H.L. Papers 157.
The chairman was Lord Blackburn. One of the members was Sir James
Stephen. The underlying principle is stated at p. 167:

“We take one great principle of the common law to be, that though it
sanctions the defence of a man’s person, liberty and property against
illegal violence, and permits the use of force to prevent crimes, to

– 6 –

preserve the public peace, and to bring offenders to justice, yet all this
is subject to the restriction that the force used is necessary; that is, that
the mischief sought to be prevented could not be prevented by less
violent means; and that the mischief done by, or which might
reasonably be anticipated from the force used is not disproportioned to
the injury or mischief which it is intended to prevent.”

In Note B. at p. 201 there is a lengthy discussion of the scope of the defence
of self-defence in relation to homicide. Nowhere is it suggested that excessive
force in self-defence reduces what would otherwise be murder to
manslaughter. There is a specific provision in section 176 of the draft code
for the reduction of murder to manslaughter in the case of provocation. There
is no similar provision in the case of excessive force hi self-defence. It is
clear from a note to section 176 that the commissioners were stating the law
as they believed it to be.

There does not appear to have been any development in the law until
The Queen v. Howe (1958) 100 C.L.R. 448 decided by the High Court of
Australia in 1958. There was an extensive citation of all the authorities in this
corner of the law going back to Rex v. Cook (1640) Cro. Car. 537. The
decision of the court is well summarised in the following paragraph of the
headnote:

“Where a plea of self-defence to a charge of murder fails only because
the death of the deceased was occasioned by the use of force going
beyond what was necessary in the circumstances for the protection of
the accused or what might reasonably be regarded by him as necessary
in the circumstances, it is, in the absence of clear and definite
decision, reasonable in principle to regard such a homicide as reduced
to manslaughter.”

Twelve years later the same point came before the Privy Council on
appeal from the Supreme Court of Jamaica: see Palmer v. The Queen [1971]
A.C. 814. Lord Morris of Borth-y-Gest, giving the opinion of the Privy
Council, declined to follow Howe’s case, preferring the decision of the West
Indian Federal Supreme Court in De Freitas v. The Queen (1960) 2 W.I.R.
523.

After setting out the elements of the defence of self-defence, he said
at p. 832:

“… if the prosecution have shown that what was done was not done
in self-defence then that issue is eliminated from the case. If the jury
consider that the accused acted in self-defence or if the jury are in
doubt as to this then they will acquit. The defence of self-defence
either succeeds so as to result in an acquittal or it is disproved in
which case as a defence it is rejected.”

– 7 –

In other words, there is no half-way house. There is no rule that a defendant
who has used a greater degree of force than was necessary in the
circumstances should be found guilty of manslaughter rather than murder.

In 1971 a Court of Appeal consisting of Edmund Davies L.J. and
Lawton and Forbes J.J. approved and followed Palmer’s case: See Reg. v.
Mclnnes [1971] 1 W.L.R. 1600, at p. 1608:

“But where self-defence fails on the ground that force used went
clearly beyond that which was reasonable in the light of the
circumstances as they reasonably appeared to the accused, is it the law
that the inevitable result must be that he can be convicted of
manslaughter only, and not of murder? It seems that in Australia that
question is answered in the affirmative . . . , but not, we think, in this
country. On the contrary, if a plea of self-defence fails for the reason
stated, it affords the accused no protection at all.”

Of course, as the court pointed out, the verdict may be reduced from murder
to manslaughter on other grounds, for example, if the prosecution fail to
negative provocation, where it arises, or fail to prove the requisite intent for
murder. But so far as self-defence is concerned, it is all or nothing. The
defence either succeeds or it fails. If it succeeds, the defendant is acquitted.
If it fails, he is guilty of murder.

In a subsequent case in Australia, Viro v. The Queen (1978) 141
C.L.R. 88, the High Court decided by a bare majority over a strong dissent
by Barwick C.J. to follow Howe in preference to Palmer. Mason J. suggested
that in self-defence cases juries should be directed in accordance with six
propositions which he formulated at the end of his judgment, and which, in
his view, best accorded “with acceptable standards of culpability.” But the
propositions proved to be unworkable in practice. Juries found difficulty in
applying, or perhaps even understanding them. As a result, a full court of
seven judges was convened to reconsider the position in Zecevic v. D.P.P.
(Victoria) (1987) 162 C.L.R. 645. The High Court decided by a majority of
five to two to revert to the law as stated in Palmer and Mclnnes, and declined
to follow Howe and Viro. Wilson, Dawson and Toohey JJ. said at p. 665:

“Believing, as we do, that the law as we have set it out is dictated by
basic principle upon a matter of fundamental importance, it is
unthinkable that the court should abdicate its responsibility by
declining to declare it accordingly. It has the virtue of being readily
understandable by a jury. It restores consistency to the law relating to
self-defence whether raised in the case of homicide or otherwise.
Finally, it has the effect of expressing the common law in terms which
are in accord with the views expressed in Palmer (adopted in England
in Mclnnes) and which are generally consonant with the law in the
code States.”

– 8 –

The point raised in the present case might have arisen for decision by
your Lordships in Attorney General for Northern Ireland’s Reference (No. 1
of 1975) [1977] A.C. 105. That case also concerned a soldier on patrol in
Northern Ireland. He shot and killed an unarmed man, who ran away when
challenged. The trial judge found that, unlike the present case, the
prosecution had failed to prove that the soldier intended to kill or cause
serious bodily harm, and further found that the homicide was justifiable under
section 3 of the Act of 1967 on the ground that the use of force was
reasonable in the circumstances. The questions for the opinion of the House
were first whether, on the facts set out in the reference, the soldier had
committed a crime at all and secondly whether, if so, the crime was murder
or manslaughter. The House held that the first question was not a question
of law at all, but a pure question of fact, which, on the facts proved at the
trial, had been answered in favour of the soldier; and that the second question,
though a question of law, did not arise on the facts. But it is to be observed
that Viscount Dilhorne said in relation to the second question at p. 148:

“I now turn to the second point of law referred, whether if a crime
was committed in the circumstances stated in the reference it was
murder or manslaughter. The Attorney-General indicated that he
would like it to be held that it was manslaughter and, while I
appreciate his reasons for doing so, I can find no escape from the
conclusion that if a crime was committed, it was murder if the shot
was fired with intent to kill or seriously wound. To hold that it could
be manslaughter would be to make entirely new law. If a plea of self-
defence is put forward in answer to a charge of murder and fails
because excessive force was used though some force was justifiable,
as the law now stands the accused cannot be convicted of
manslaughter. It may be that a strong case can be made for an
alteration of the law to enable a verdict of manslaughter to be returned
where the use of some force was justifiable but that is a matter for
legislation and not for judicial decision.”

It is sometimes said that the law of Scotland allows a verdict of
culpable homicide in cases of excessive force in self-defence. Thus in the
report of the House of Lords Select Committee on Murder and Life
Imprisonment, session 1988-89 (H.L. Paper 78-1), the Committee
recommended in para. 89 that there should be a qualified defence of excessive
force in self-defence, and noted that this would bring the law of England and
Wales into line with the law of Scotland. But in Crawford v. H.M. Advocate
[1950] J.C. 67 at p. 70, the Lord Justice-General, Lord Cooper, said that “the
special defence of self-defence must either result in complete exculpation or
be rejected outright.”

Counsel for the appellant, drew attention to a passage from Gordon,
The Criminal Law of Scotland, 2nd ed. (1978) p. 765, as follows:

– 9 –

“If a soldier kills while on duty, or in what he reasonably believes to
be his duty, but the circumstances are not such as to justify his action
because, for example, he acted hastily, or used more violence than was
justifiable, he will be treated as guilty only of culpable homicide,
unless the excess was gross.”

But the context in which this was said is a list of so-called “unofficial
categories” of culpable homicide, in contrast to legal categories such as
provocation and diminished responsibility. The unofficial categories cover
cases in which, as a matter of practice, only culpable homicide is charged
although a charge of murder could properly be brought. In the present case
Private Clegg was, of course, charged with murder.

In Canada, the Supreme Court has rejected the Howe doctrine, in
relation to self-defence as well as the use of force in the prevention of crime:
see Gee [1983] D.L.R. 587 and Brisson [1983] D.L.R. 685.

I do not find it necessary to go through the earlier English authorities
relied on by counsel, since they were all reviewed at length by Lord Morris
in Palmer’s case. I respectfully agree with his analysis. Counsel did not
advance any fresh arguments. In my opinion the law of England must now
be taken to be settled in accordance with the decision of the Privy Council in
that case. Thus the consequence of the use of excessive force in self-defence
will be the same in the law of England, Scotland, Australia, Canada and the
West Indies. I consider later whether, despite this uniformity, some change
in the law may, nevertheless, be desirable.

The second question is whether there is any distinction to be made
between excessive force in self-defence and excessive force in the prevention
of crime or in arresting offenders. In Attorney-General for Northern Ireland’s
Reference Lord Diplock said at p. 139 that the two cases were quite different.
But I do not think it possible to say that a person who uses excessive force in
preventing crime is always, or even generally, less culpable than a person who
uses excessive force in self-defence; and even if excessive force in preventing
crime were in general less culpable, it would not be practicable to draw a
distinction between the two defences, since they so often overlap. Take, for
example, the facts of the present case. The trial judge held that Private
Clegg’s first three shots might have been fired in defence of Private Aindow.
But he could equally well have held that they were fired in the prevention of
crime, namely, to prevent Private Aindow’s death being caused by dangerous
driving. As is pointed out in Smith and Hogan: Criminal Law 6th ed., p.
244, the degree of permissible force should be the same in both cases. So
also should the consequences of excessive force.

The third question is whether it makes any difference that Private
Clegg was a member of the Security Forces, acting in the course of his duty.
The argument in favour of making an exception to the general rule in such a
case was put with great force by Mr. Samuel Silkin Q.C. A.-G. in the course

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of his submissions in the Attorney-General for Northern Ireland’s Reference.
At p. 112, he said:

“In considering whether in principle a verdict of manslaughter is
possible one must consider two points: (a) The basis of this question
is not simply a failed defence of justifiable homicide; honest belief in
one’s duty is an additional element and it must considered whether it
makes a difference, (b) There has emerged from the recent cases a
renewed vigour in regarding the common law as an instrument for
enabling the courts to do what is just in relation to criminal offences
and defences: see Director of Public Prosecutions for Northern Ireland
v. Lynch [1975] AC 653, 672, 684-5, 696-7. The common law is
wide enough to achieve a just result without leaving the matter to the
executive and, where its principles allow this, it should be done. In
reducing the crime to manslaughter it is not the intention of the soldier
which is relied on but his honest belief as to his duty. As to the use
of excessive force, see Smith and Hogan, Criminal Law, 3rd ed.
(1973), pp. 263-264. An unreasonable but honest man who killed
might be guilty of manslaughter only.”

The special position of a soldier in Northern Ireland is reflected in Lord
Diplock’s speech in the same case, at pp. 136-137:

“There is little authority in English law concerning the rights
and duties of a member of the armed forces of the Crown when acting
in aid of the civil power; and what little authority there is relates
almost entirely to the duties of soldiers when troops are called upon to
assist in controlling a riotous assembly. Where used for such
temporary purposes it may not be inaccurate to describe the legal
rights and duties of a soldier as being no more than those of an
ordinary citizen in uniform. But such a description is in my view
misleading in the circumstances in which the army is currently
employed in aid of the civil power in Northern Ireland … In theory
it may be the duty of every citizen when an arrestable offence is about
to be committed in his presence to take whatever reasonable measures
are available to him to prevent the commission of the crime; but the
duty is one of imperfect obligation and does not place him under any
obligation to do anything by which he would expose himself to risk of
personal injury, nor is he under any duty to search for criminals or
seek out crime. In contrast to this a soldier who is employed in aid of
the civil power in Northern Ireland is under a duty, enforceable under
military law, to search for criminals if so ordered by his superior
officer and to risk his own life should this be necessary in preventing
terrorist acts. For the performance of this duty he is armed with a
firearm, a self-loading rifle, from which a bullet, if it hits the human
body, is almost certain to cause serious injury if not death.”

– 11 –

I would particularly emphasise the last sentence in the above quotation. In
most cases of a person acting in self-defence, or a police officer arresting an
offender, there is a choice as to the degree of force to be used, even if it is
a choice which has to be exercised on the spur of the moment, without time
for measured reflection. But in the case of a soldier in Northern Ireland, in
the circumstances in which Private Clegg found himself, there is no scope for
graduated force. The only choice lay between firing a high velocity rifle
which, if aimed accurately, was almost certain to kill or injure, and doing
nothing at all.

It should be noticed that the point at issue here is not whether Private
Clegg was entitled to be acquitted altogether, on the ground that he was acting
in obedience to superior orders. There is no such general defence known to
English law, nor was any such defence raised at the trial. As long ago as
1816 it was held in Rex v. Thomas that a sentry who fired in the belief that
it was his duty to do so had no defence to a charge of murder. For a recent
illustration, see the emphatic view expressed by the High Court of Australia
in A v. Hayden (No. 2) (1984) 156 C.L.R. 532, followed by the Privy Council
in Yip Chiu Cheung v. The Queen [1994] 3 W.L.R. 514. The point is rather
whether the offence in such a case should, because of the strong mitigating
circumstances, be regarded as manslaughter rather than murder. But so to
hold would, as Viscount Dilhorne said in Attorney-General for Northern
Ireland’s Reference, be to make entirely new law. I regret that under existing
law, on the facts found by the trial judge, he had no alternative but to convict
of murder.

Counsel sought to raise in his printed case a possible defence of
provocation. But no such defence was raised before the trial judge, or in the
Court of Appeal, where Private Clegg was represented by leading counsel.
The point is not covered by the certified question, no doubt because it was
never open on the evidence. I say no more about it.

Counsel also sought to argue that the Court of Appeal ought not to
have applied the proviso under section 2(1) of the Criminal Appeal (Northern
Ireland) Act 1980 in relation to the defence under section 3 of the Act of
1967. There is nothing in that point. The Court of Appeal were entitled to
hold, having reviewed all the evidence, that the use of lethal force to kill or
wound the driver of the car in order to arrest him was, in the circumstances,
so grossly disproportionate to the mischief to be averted as to deprive him of
a defence under section 3, and that any reasonable tribunal of fact, if properly
directed, would inevitably have so found. Accordingly, the Court of Appeal
having raised the point itself, and having dealt with it fully and properly, was
entitled to dismiss the appeal.

Should the law be changed?

I have already mentioned some of the arguments in favour of changing
the law when dealing with the third question. They have never been

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expressed more persuasively, or with greater insight, than they were by the
Court of Appeal in the present case. The ground had already been covered
by the Criminal Law Revision Committee in its 14th Report in 1980 (Cmnd.
7844), at a time when the Australian law had not yet been brought back into
line with Palmer’s case. In paragraph 73 of the recommendations we find:

“Where a person kills in a situation in which it is reasonable for some
force to be used in self-defence or in the prevention of crime but the
defendant uses excessive force, he should be liable to be convicted of
manslaughter not murder if, at the time of the act, he honestly believed
that the force he used was reasonable in the circumstances.”

In paragraph 59 of the Law Commission’s Draft Criminal Code for England
and Wales (1989) (Law Com. No. 177) we find:

“A person who, but for this section, would be guilty of murder is not
guilty of murder if, at the time of his act, he believes the use of the
force which causes death to be necessary and reasonable to effect a
purpose referred to in section 44 (use of force in public or private
defence), but the force exceeds that which is necessary and reasonable
in the circumstances which exist or (where there is a difference) in
those which he believes to exist.”

Finally, the Select Committee on Murder and Life Imprisonment, to which I
have already referred, found the argument in favour of a qualified defence of
using excessive force in self-defence to be convincing. I would refer in
particular to the memorandum prepared by Viscount Colville of Culross, vol.
III, p. 542. These recommendations are all one way. They are entitled to
great weight. But Parliament has not yet acted on them. The question thus
arises whether this House can itself develop the law along the lines
recommended, without waiting for the legislature. Encouragement to take
such a course is to be found in the majority decision of the House in Director
of Public Prosecutions v. Lynch [1975] AC 653. In that case the question
was whether duress was available as a defence to a person charged with aiding
and abetting murder. The House held, by a majority, that it was. Lord
Wilberforce said, at pp. 684-685:

“The broad question remains how this House, clearly not bound by any
precedent, should now state the law with regard to this defence in
relation to the facts of the present case. I have no doubt that it is open
to us, on normal judicial principles, to hold the defence admissible.
We are here in the domain of the common law: our task is to fit what
we can see as principle and authority to the facts before us, and it is
no obstacle that these facts are new. The judges have always assumed
responsibility for deciding questions of principle relating to criminal
liability and guilt, and particularly for setting the standards by which
the law expects normal men to act. In all such matters as capacity,
sanity, drunkenness, coercion, necessity, provocation, self-defence, the|

– 13 –

common law, through the judges, accepts and sets the standards of
right-thinking men of normal firmness and humanity at a level which
people can accept and respect. The House is not inventing a new
defence: on the contrary, it would not discharge its judicial duty if it
failed to define the law’s attitude to this particular defence in particular
circumstances.”

But there are difficulties in adopting this broad approach in the present case,
attractive though it might be. In the first place, Director of Public
Prosecution v. Lynch has since been overruled by this House in Reg. v. Howe
[1987] AC 417. The dissenting speech of Lord Simon of Glaisdale in
Lynch’s case has been vindicated.

Secondly, the background is different. The defence of duress was the
creation of the common law. So also, of course, were the defences of self-
defence and the use of force in the prevention of crime. The difference is that
in the latter case Parliament has already taken a hand by enacting section 3 of
the Criminal Law Act 1967. Parliament did not, in doing so, see fit to create
a qualified defence in cases where the defendant uses excessive force in
preventing crime.

In Reg. v. Howe, one of the reasons given for overruling Lynch was
that Parliament had not acted on a recommendation made by the Law
Commission ten years before: see per Lord Bridge of Harwich at p. 437 and
Lord Griffiths at p. 443. This reasoning has been criticised, with some
justice, by Smith and Hogan at p. 233. There may be many reasons for a
failure to legislate. But the criticism does not have the same force in the
present case, where Parliament has indeed acted in the very field which is now
in dispute, as well as in closely related fields, such as those covered by
sections 2 and 3 of the Homicide Act 1957, section 2 of the Suicide Act 1961
and section 1 of the Abortion Act 1967.

In his dissenting speech in Director of Public Prosecutions v. Lynch
Lord Simon of Glaisdale said, at p. 695:

“I am all for recognising frankly that judges do make law. And I am
all for judges exercising this responsibility boldly at the proper time
and place – that is, where they can feel confident of having in mind,
and correctly weighed, all the implications of their decision, and where
matters of social policy are not involved which the collective wisdom
of Parliament is better suited to resolve (see Launchbury v. Morgans
[1973] AC 127 at pp. 136F-137A, 137G). I can hardly conceive of
circumstances less suitable than the instant for five members of an
appellate committee of your Lordships’ House to arrogate to ourselves
so momentous a law-making initiative.”

– 14 –

Like Lord Simon, I am not averse to judges developing law, or indeed making
new law, when they can see their way clearly, even where questions of social
policy are involved. A good recent example would be the affirmation by this
House of the decision of the Court of Appeal (Criminal Division) that a man
can be guilty of raping his wife (Reg. v. R. [1992] 1 AC 599). But in the
present case I am in no doubt that your Lordships should abstain from law
making. The reduction of what would otherwise be murder to manslaughter
in a particular class of case seems to me essentially a matter for decision by
the legislature, and not by this House in its judicial capacity. For the point
in issue is, in truth, part of the wider issue whether the mandatory life
sentence for murder should still be maintained. That wider issue can only be
decided by Parliament. I would say the same for the point at issue in this
case. Accordingly I would answer the certified question of law as follows.
On the facts stated, and assuming no other defence is available, the soldier or
police officer will be guilty of murder, and not manslaughter. It follows that
the appeal must be dismissed.