LAW REPORT : Shooting of joyrider by soldier was murder

Regina v Clegg. House of Lords (Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Lloyd of Berwick and Lord Nicholls of Birkenhead). 19 January 1995.

It was not open to the court to convict of manslaughter where, on a charge of murder, a plea of self-defence had failed because the force used had been excessive, even though the force had been used by a soldier on active service in the execution of his duty.

The House of Lords unanimously dismissed an appeal by the defendant, Private Lee William Clegg, from the Northern Ireland Court of Appeal which, on 30 March 1994, upheld his conviction on 4 June 1993, by Mr Justice Campbell sitting without a jury, for murder. He was sentenced to life imprisonment.

Private Clegg was a soldier serving with the Parachute Regiment in Northern Ireland and was on patrol in Glen Road, West Belfast, on 30 September 1990, when the driver of a stolen car and one of his passengers were shot and killed.

He was charged with murder of the passenger and attempt-ed murder of the driver.

The certified question of law was whether a soldier on duty, who killed 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, was guilty of murder or manslaughter.

Richard Ferguson QC, Michael Egan and Stephen Hellman (Bassra Solicitors) for Clegg; R G Weir QC and F E O'Reilly, of the Northern Ireland Bar (DPP, Belfast) for the Crown.

LORD LLOYD said all four members of the patrol team of which Private Clegg was a member had fired at the approaching car as it accelerated towards them with its headlights full on, after being shouted at to stop. Clegg said he fired three shots at the windscreen and a fourth into the car's side as it passed. He said he thought the life of another soldier, Private Aindow, was in danger.

But on scientific evidence the judge found Clegg's fourth shot was fired after the car had passed and struck a rear-seat passenger, Karen Reilly, in the back. He accepted that Clegg's first three shots were fired in self-defence or defence of Private Aindow, but not the fourth because the car had already passed.

The judge also found that the bruising on Aindow's leg was caused by another soldier stamping on him in order to create the appearance of having been struck by the car, and Aindow was convicted for perverting the course of justice. There was no evidence that Clegg thought the driver was a terrorist, so the use of lethal force to arrest him was, in the appeal court's view, "grossly disproportionate to the mischief to be averted".

However, the appeal court considered it would have been fairer if it had been open to the judge to convict Clegg of the lesser offence of manslaughter on the ground that he did not kill Karen Reilly from an evil motive but because he had reacted wrongly to a situation which suddenly confronted him as a soldier.

In R v Howe (1958) 100 CLR 448, the High Court of Australia held that in such a case it was "reasonable in principle to regard such a homicide as reduced to manslaughter". But in Palmer v R [1971] AC 814 at 832, the Privy Council declined to follow that,Lord Morris saying: "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."

In other words, there was no half-way house. Nor could it be said that a person who used excessive force in preventing crime was always, or even generally, less culpable than a person who used excessive force in self-defence. In most cases there was a choice as to the degree of force used. But for a soldier in Northern Ireland, in the circumstances in which Private Clegg found himself, there was no scope for graduated force. The only choice lay between firing a high-velocity rifle which was almost certain to kill or injure, and doing nothing.

Should the law be changed? The Criminal Law Revision Committee (14th report, 1980, Cmnd 7844) had so recommended, as had both the Law Commission in its 1989 Draft Criminal Code, and the House of Lords Select Committee on Murder and Life Imprisonment in its 1988-89 session. But Parliament had not yet acted on those recommendations and this was not a case where their Lordships should make new law. The reduction of what would otherwise be murder to manslaughter in a particular class of case was essentiallya matter for decision by the legislature and not the House of Lords in its judicial capacity.

The point in issue was, in truth, part of the wider issue whether the mandatory life sentence for murder should still be maintained. That wider issue could only be decided by Parliament.

In the present case, the answer to the certified question was that the soldier concerned must be held guilty of murder, not manslaughter. The appeal must therefore be dismissed.

Paul Magrath, barrister