Legal Principles and Key Points
- In the case of Clegg 1995 1 AC 482, it was held that a solider or police officer whom in the course of his duty, kills a person using excessive and unreasonable force in self-defence is guilty of murder, not manslaughter.
Facts of the Case
- A British soldier while on night patrol in Northern Ireland stopped a stolen car at a vehicle checkpoint.
- The car then accelerated away in the centre of the road with its headlights on full, towards the solider and three other members on the patrol.
- Someone at the checkpoint shouted to stop the car and the soldier and his three colleagues opened fire at the approaching car.
- The driver and a rear seat passenger were killed, the passenger having been hit in the back by a bullet fired from the soldier’s rifle.
- The soldier was charged with the murder of the passenger and claimed self-defence.
- His appeal to the Court of Appeal was dismissed.
- The soldier then appealed to the House of Lords.
Issues in Clegg 1995 1 AC 482
- Whether a soldier on duty who kills 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 is guilty of murder or manslaughter.
Held by House of Lords
- Appeal dismissed
- Held that the plea of self-defence fails as the use of force was excessive and unreasonable.
- The murder could not be reduced to manslaughter.
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 is a choice which has 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 Private Clegg found A himself, there is no scope for graduated force. The only choice lay between firing a high-velocity rifle which, if aimed accurately, was almost certain to kill or injure, and doing nothing at all. It should be noticed that the point at issue here is not whether Private Clegg was entitled to be acquitted altogether, on the ground that he was acting in obedience to superior orders. There is no such general defence known to English law, nor was any such defence raised at the trial. As ” long ago as 1816 it was held in Rex v. Thomas, Judges’ Note Books, Crown Cases Reserved 1757-1845; 4 M. & S. 448, note (b) that a sentry who fired in the belief that it was his duty to do so had no defence to a charge of murder. For a recent illustration, see the emphatic view expressed by the High Court of Australia in A. v. Hayden (No. 2) (1984) 156 C.L.R. 532, followed by the Privy Council in Yip Chiu-Cheung v. The Q Queen  1 A.C. 111. The point is rather whether the offence in such a case should, because of the strong mitigating circumstances, be regarded as manslaughter rather than murder. But so to hold would, as Viscount Dilhorne said in Attorney-General for Northern Ireland’s Reference (No. 1 of 1975)  A.C. 105, 148, be to make entirely new law. I regret that under existing law, on the facts found by the trial judge, he had no alternative but to convict of murder. “ pg 497-498