R v Clegg

The House of Lords dismissed the appellant's appeal and answered the certified question by holding that, on the facts stated and assuming no other defence is available, a soldier or police officer who fires a shot with the intention required for murder but whose action constitutes excessive force contrary to self-defence, prevention of crime or arrest, is guilty of murder and not manslaughter. The court concluded that the established common‑law position — that a plea of self‑defence is all or nothing and excessive force does not reduce murder to manslaughter — remains applicable. The court noted recorded recommendations and academic proposals for a qualified defence but held that any change of law of this character is for Parliament, not the judiciary. The judgment considered section 3(1) of the Criminal Law Act (Northern Ireland) 1967 and the application of the Criminal Appeal (Northern Ireland) Act 1980 proviso in the Court of Appeal.

Background and facts:

• On the night of 30 September 1990 Private Lee William Clegg, serving with the Parachute Regiment on patrol in West Belfast, fired four shots at a stolen car approaching an army checkpoint. Three shots were accepted by the trial judge to be in self-defence or defence of a comrade; the fourth shot was fired after the car had passed and struck and killed a rear seat passenger, Karen Reilly. The trial judge (Campbell J) found that the fourth shot was an aimed shot intended to cause death or serious bodily harm and convicted Private Clegg of murder (conviction 4 June 1993).
• On appeal to the Court of Appeal in Northern Ireland the court reviewed the evidence, held there was material to raise the defence under section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (use of such force as is reasonable in preventing crime or effecting arrest), but concluded that the use of lethal force to arrest the driver would have been so grossly disproportionate as to afford no defence under that section; the appeal was dismissed by order of 30 March 1994.

Procedural posture and certified question:

The Court of Appeal observed that although the defendant had no evil motive and was acting in the course of duties as a soldier, the law compelled a murder conviction where the requisite intent was proved even if some force was justifiable but the force that caused death was excessive. The Court of Appeal therefore posed a certified question to the House of Lords asking whether, in circumstances where an officer or soldier uses excessive force in self‑defence, prevention of crime or arrest, the offence should be manslaughter rather than murder.

Issues framed and reasoning:

• Whether existing law permits reduction of murder to manslaughter where self‑defence or other justifying grounds are partially available but the force used is excessive.
• Whether the same rule applies to the prevention of crime or effecting arrest as to self‑defence.
• Whether a soldier or police officer acting in the course of duty ought to be treated differently from an ordinary citizen for these purposes.
• Whether the House of Lords could alter the law if it found the existing rule unacceptable.

The House reviewed authority from England, Scotland, Australia, the West Indies and the Privy Council, including Palmer v The Queen and related decisions, and concluded that English law requires an all‑or‑nothing approach to self‑defence: if the defence succeeds the accused is acquitted; if it fails (for example because force used was excessive) the accused is liable to be convicted of murder if the mens rea for murder is proved. The court rejected a judicial alteration of that principle because Parliament had legislated in related fields (including section 3(1) Criminal Law Act (Northern Ireland) 1967) and because the change sought would be a significant law‑making step properly for the legislature.

Appeal dismissed. The House held that, on the facts stated and assuming no other defence is available, a soldier or police officer who fires a shot with the intent required for murder but whose use of force is excessive in self‑defence, in preventing crime or in effecting arrest, is guilty of murder and not manslaughter. The court followed existing authority establishing that self‑defence is all or nothing and concluded that any change to create a qualified defence in such circumstances should be made by Parliament rather than by judicial decision.

Trial: convicted of murder by Campbell J on 4 June 1993. Appeal to the Court of Appeal in Northern Ireland dismissed by order of 30 March 1994. Appeal to the House of Lords dismissed on 19 January 1995 ([1995] UKHL 1).