R v Clegg

Facts

The defendant was a soldier serving in Northern Ireland, stationed at a vehicle checkpoint. A car approached at speed and passed through the checkpoint. The defendant fired several shots at the car. The first shots were fired as the car approached, and the last was fired after it had passed him and was moving away. The last shot struck a passenger in the car and killed her.

History

The defendant was convicted of murder at trial in Northern Ireland by a judge sitting without a jury, who found that the last shot was fired when it could no longer be justified as a defence of himself or others. The Court of Appeal in Northern Ireland dismissed his appeal and certified a point of law of general importance, and the House of Lords heard his appeal.

Issue

Whether a soldier who uses more force than is reasonable in self-defence, or in the prevention of crime or arrest, but who intended to kill or cause grievous bodily harm, is guilty of murder or only of manslaughter, as a form of voluntary manslaughter.

Held

Appeal dismissed and the murder conviction upheld. Excess of force in self-defence or in preventing crime does not reduce murder to manslaughter, and a change to the law is a matter for Parliament.

Ratio

• Where a defendant kills with the intent required for murder using force that is unreasonable in the circumstances, self-defence or the use of force to prevent crime or to arrest fails altogether, and he is guilty of murder; there is no partial defence reducing it to manslaughter.
• Whether such a partial defence should exist is a question of policy for Parliament, and the courts will not create a new form of voluntary manslaughter.

The judgments

Key reasoning

• The long standing common law position, as confirmed in Palmer v The Queen [1971] AC 814, is that a person who uses reasonable force in self-defence has a complete defence, and a person who uses unreasonable force has none.
• The House declined to adopt the partial defence of excessive force recognised by the High Court of Australia in Viro v The Queen (1978) 141 CLR 88, since it conflicted with the settled position in England.
• Creating the partial defence would be a major change in the law of murder with wide implications and would involve questions of policy, including the mandatory life sentence for murder, which were matters for Parliament.

Where it fits in the module

In the Incapacity and General Defences topic the case is used to examine the nature of self-defence as a complete defence and the lack of a partial defence for excessive force. It raises the question whether the law should have an intermediate position, and whether the mandatory sentence for murder should be reconsidered.

Criticisms

• The all or nothing rule produces a stark outcome for a defendant who honestly but unreasonably believed he was in danger or who acted with an excess of force, who is labelled a murderer, and many argue that a conviction for manslaughter would better reflect culpability.
• The House left the matter to Parliament because of the mandatory life sentence, but this reasoning treats a problem of sentencing as a reason to deny a partial defence in the law of murder.
• The distinction between lethal force used reasonably and unreasonably is drawn in the heat of a moment, and the decision gives little weight to the position of those such as soldiers and police who are required to act in a hostile environment.