R v Clegg

Where a person intentionally kills or causes serious injury, excessive and unreasonable force cannot reduce murder to manslaughter. Self-defence succeeds completely or fails completely. The same rule governs force used to prevent crime or effect a lawful arrest.

No different rule applies to soldiers or police officers acting in the course of duty. Their duties and circumstances may mitigate punishment, but they do not create a partial defence. Any qualified defence reducing murder to manslaughter requires legislation.

A soldier fired four shots at a stolen car which had driven through a checkpoint. The trial judge accepted that the first three shots could have been fired in defence of another soldier. The fourth was fired after the car had passed and caused a passenger's death. The soldier was convicted of murder.

The Court of Appeal in Northern Ireland held that there was evidence capable of raising the statutory defence of using reasonable force to arrest the driver. It nevertheless dismissed the appeal because lethal force was grossly disproportionate and the defence would inevitably have failed.

The certified question was whether a soldier or police officer who intentionally killed while using excessive force in self-defence, crime prevention or arrest was guilty of manslaughter rather than murder.

1. Appeal dismissed unanimously. Lord Lloyd of Berwick delivered the leading speech. Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Nicholls of Birkenhead agreed. The certified question was answered by holding that, on the stated facts and assuming no other defence, the soldier or police officer was guilty of murder and not manslaughter.

2. Per Lord Lloyd, self-defence provides no partial defence based on excessive force. It either succeeds and produces an acquittal, or fails altogether. Where it fails because the force used was unreasonable, a person who possessed the intention required for murder remains guilty of murder. The offence may still be reduced to manslaughter on an independent ground, such as provocation or absence of the necessary intent.

3. The same consequence applies to excessive force used to prevent crime or effect an arrest under section 3 of the Criminal Law Act (Northern Ireland) 1967. The defences frequently overlap, and there was no workable or principled basis for applying a lesser consequence to one of them. The permissible degree of force and the consequences of exceeding it should be the same.

4. A soldier or police officer acting in the course of duty receives no special partial defence. Lord Lloyd recognised that a soldier armed with a high-velocity rifle might have no practical choice between lethal force and inaction. Those circumstances could be strongly mitigating, but they could not alter murder to manslaughter under the existing law. Nor did obedience to superior orders constitute a general defence.

5. The Court of Appeal properly applied section 2(1) of the Criminal Appeal (Northern Ireland) Act 1980. Although the trial judge should have considered the arrest defence, the evidence established that firing lethally after the car had passed was grossly disproportionate. Any properly directed tribunal would inevitably have rejected the defence.

6. Lord Lloyd declined to create a qualified defence judicially. Parliament had legislated in the field of reasonable force and in related areas reducing or defining homicide liability. Whether excessive force should reduce murder to manslaughter was also connected with the mandatory life sentence and involved policy choices suitable for Parliament. The lower court's order was affirmed.

1. House of Lords: The appeal was dismissed unanimously, the Court of Appeal's order was affirmed, and the certified question was answered by holding that the offence was murder rather than manslaughter.

2. Court of Appeal in Northern Ireland: The appeal was dismissed. Although the trial judge should have considered reasonable force in effecting an arrest, the court held that lethal force was grossly disproportionate and that the defence would inevitably have failed.

3. Trial before Campbell J: The appellant was convicted of murder after the judge found that the fatal fourth shot was fired after the danger had passed, with intent to kill or cause serious bodily harm.