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Cite as: [1995] 1 All ER 334, [1995] UKHL 1, [1995] 1 AC 482, [1995] AC 482

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    Parliamentary Archives,
    HL/PO/JU/18/255

    Regina

    v.

    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

    v.

    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

    - 2 -

    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. 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

    - 10 -

    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

    - 12 -

    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.

    LORD NICHOLLS OF BIRKENHEAD

    My Lords,

    I agree that, for the reasons given in the speech of my noble and
    learned friend, Lord Lloyd of Berwick, this appeal should be dismissed.

    - 15 -



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