The Facts
The facts, taken from the speech of Lord Lloyd, were that on the night of September 30, 1990, Lee Clegg, a private soldier serving with the Parachute Regiment, had been on patrol in West Belfast. The purpose of the patrol had been to catch joyriders, but that had not been explained to Clegg. As a stolen car had accelerated from one part of the street to another someone had shouted to stop it. All four members of Clegg' s detachment had fired at it.
Clegg' s evidence was that he had fired four shots because he had thought that a colleague's life was in danger. However, scientific evidence had shown, and the Judge had found as a fact, that the fourth shot had been fired after the car had passed and was already some 50 or 60 feet along the road to Belfast. It had struck a back-seat passenger, Karen Reilly, in the back and had been a significant cause of her death. The Judge had found that it had been an aimed shot fired with the intention of causing death or serious bodily harm. In relation to the first three shots, the Judge had accepted that Clegg had fired in self-defence or in defence of his colleague. But in relation to the fourth shot he had found that Clegg could not have been firing in defence of himself or his colleague since, once the car had passed, they had no longer been in danger.
The Court of Appeal had observed:
"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 Clegg of the lesser crime of manslaughter on the ground that he did not kill from any 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... a law which would permit a conviction for manslaughter would reflect more clearly the nature of the offence which he had committed."
Strictly speaking, the question whether the law allowed a verdict of manslaughter instead of murder where the force used in self-defence had been excessive did not arise. Since the danger had already passed when Clegg had fired the fourth shot, there could be no question of self-defence.
In R. v. Howe (1958) 100 CLR 448 decided by the High Court of Australia, the court had held:
"Where a plea of self-defence in 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."
However, Lord Morris, on an appeal from the Supreme Court of Jamaica in Palmer v. The Queen [1971] AC 814, 832 had declined to follow Howe. He had said:
"... 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 they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disapproved in which case as a defence it is rejected."
The law of England had now to be taken to be settled in accordance with that decision.
The special position of a soldier in Northern Ireland was reflected in Lord Diplock' s speech. His Lordship would particularly emphasize the last sentence: "For the performance of [his] duty he is armed with a firearm ... from which a bullet, if it hits the human body, is almost certain to cause serious injury if not death."
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 was a choice that had 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 Clegg had found himself, there was no scope for graduated force. The only choice lay between firing a high velocity rifle that, if aimed accurately, was almost certain to kill or injure, and doing nothing.
Should the law be changed?
The Criminal Law Revision Committee in its fourteenth Report in 1980 (Cmnd 7844) had recommended so in para.73. Similar recommendations had been made by the Law Commission. Those recommendations were all one way and were entitled to great weight, but Parliament had not yet acted on them. The question thus arose whether the House of Lords could itself develop the law along the lines recommended without waiting for the legislature?
Like Lord Simon of Glaisdale in DPP for Northern Ireland v. Lynch [1979] AC 653, 695-696, his Lordship was not adverse to Judges developing law, or indeed making new law when they could see their way clearly, even where questions of social policy were involved. A good recent example would be the affirmation by the House of Lords of the Court of Appeal, Criminal Division, that a man could be guilty of raping his wife R. v. R. (1991) 155 JP 373; [1992] 1 AC 599. But in the present case his Lordship was in some doubt that their Lordships should abstain from law making. The reduction of what would otherwise be murder to manslaughter in a particular class of case seemed to him essentially a matter for decision by the legislature and not by the House in its judicial capacity.
The point in issue was, in truth part of, or closely related to a much wider issue, whether the mandatory life sentence for murder should still be maintained. That wider issue could only be decided by Parliament.
The Findings.
The House of Lords dismissed the appeal by Clegg from the Court of Appeal in Northern Ireland who had dismissed his appeal against his conviction by Campbell, J, sitting without a jury of murder and the sentence of life imprisonment imposed on him.
Therefore where on a charge of murder, a plea of self-defence failed because excessive force had been used, it was not open to the court to convict of manslaughter rather than murder. It made no difference that the force had been used in the prevention of crime or arresting an offender or that the accused was a soldier or police officer acting in the course of his duty.
Comment
It is clear that on occasions the Law Lords do develop or make law without waiting for Parliament, see Shaw v. DPP (1961) 125 JP 437; [1962] AC 220, where they held that a conspiracy to corrupt public morals was an offence. Lord Reid maintained it was wrongly decided, but it has nevertheless been followed in the interests of certainty.
However, the present case seems to be an area in which they are reluctant to intervene, probably because of the wider issues involved; viz. whether the mandatory life sentence for murder should be maintained. That issue encompasses the cases of women who have killed husbands and lovers as a result of repeated violence, only to find the defence of provocation (which would reduce the charge from murder to manslaughter) not available to them, see "Delayed Reaction Killing: A New Deal?", R. Jerrard, 157 JPN 309, which discusses the issue of whether there should be an offence of "spouse killing" carrying a maximum of five years.
It is a sad day for British justice when we employ servicemen in dangerous situations and ask for perfection. One is reminded of the story of the lawyer who, taking a volume down from the shelf said, "You know I think the policeman made a mistake in this case". His colleague retorted, "Maybe but he didn't have a law library available to him when he made his decision". Terrorist gunmen do have a choice when they take aim.
Rob Jerrard