R v Clegg

JurisdictionUK Non-devolved
JudgeLord Keith of Kinkel,Lord Browne-Wilkinson,Lord Slynn of Hadley,Lord Lloyd of Berwick,Lord Nicholls of Birkenhead
Judgment Date19 January 1995
Judgment citation (vLex)[1995] UKHL J0119-7
Date19 January 1995
CourtHouse of Lords

[1995] EWCA Civ J0119-7

House of Lords

Lord Keith of Kinkel

Lord Browne-Wilkinson

Lord Slynn of Hadley

Lord Lloyd of Berwick

Lord Nicholls of Birkenhead

(Appellant) (Northern Ireland)


Lord Keith of Kinkel

My Lords,


For the reasons given in the speech to be delivered by my noble and learned friend Lord Lloyd of Berwick, which I have read in draft and with which I agree, I would dismiss this appeal, and answer the certified question as he proposes.

Lord Browne-Wilkinson

My Lords,


For the reasons given in the speech of my noble and learned friend Lord Lloyd of Berwick I too would dismiss the appeal.

Lord Slynn of Hadley

My Lords,


I have had the advantage of reading in draft the speech to be given by my noble and learned friend Lord Lloyd of Berwick. I agree that for the reasons he gives the appeal should be dismissed.

Lord Lloyd of Berwick

My Lords,


On the night of 30 September 1990 the appellant, Lee William Clegg, a soldier serving with the Parachute Regiment, was on patrol in Glen Road, West Belfast, when the driver of a stolen car and one of his passengers were shot and killed. Private Clegg was charged with murder of the passenger, and attempted murder of the driver. His defence was that he fired in self-defence. He was convicted on 4 June 1993, after a trial before Campbell J. without a jury. His appeal to the Court of Appeal was dismissed. The Court of Appeal held that the firing of the shot which killed the passenger was, on the facts found by the judge, a grossly excessive and disproportionate use of force, and that any tribunal of fact properly directed would so have found. The certified question of law for your Lordships is 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.


The patrol consisted of 15 men under the command of Lieutenant Oliver. It was accompanied by a police constable from the Royal Ulster Constabulary. The purpose of the patrol was to catch joyriders. But this was not explained to Private Clegg. The patrol was divided into 4 teams or "bricks." Brick 11 formed a vehicle checkpoint at a bridge on the Glen Road about 6 miles west of Belfast. Brick 10A, consisting of Lieutenant Oliver, Private Clegg, Private Aindow and another, were moving down the road towards Belfast. Private Aindow was on the right hand side of the road. The others were all on the left hand side. Bricks 12 and 14 were still further down the road, around a corner. As the stolen car approached the bridge from the west, it was stopped by a member of Brick 11. The car then accelerated away in the centre of the road towards Brick 10A with its headlights full on. Someone in Brick 11 shouted to stop it. All four members of Brick 10A fired at the approaching car. Private Clegg's evidence was that he fired three shots at the windscreen, and a fourth shot into the side of the car as it was passing. He then replaced his safety catch. According to Private Clegg he fired all four shots because he thought Private Aindow's life was in danger. However, scientific evidence showed, and the trial judge found as a fact, that Private Clegg's fourth shot was fired after the car had passed, and was already over 50 feet along the road to Belfast. It struck a rear-seat passenger, Karen Reilly, in the back. It was later found lodged beneath her liver. The judge found that Private Clegg's fourth shot was an aimed shot fired with the intention of causing death or serious bodily harm. Although another bullet passed through Karen Reilly's body, Private Clegg's fourth shot was a significant cause of her death.


In relation to the first three shots, the judge accepted Private Clegg's defence that he fired in self-defence or in defence of Private Aindow. But with regard to the fourth shot he found that Private Clegg could not have been firing in defence of himself or Private Aindow, since, once the car had passed, they were no longer in any danger.


Having rejected Private Clegg's defence in relation to the fourth shot, the judge went on to consider, as was his duty, whether there was any other defence open on the evidence, even though Private Clegg had not raised the defence himself. One possible defence was that Private Clegg fired the fourth shot in order to arrest the driver. Section 3(1) of the Criminal Law Act (Northern Ireland) 1967 provides:

"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."


The judge held that there was insufficient evidence to raise such a defence. Accordingly he convicted Private Clegg of murder.


When the case reached the Court of Appeal, the court reviewed the whole of Private Clegg's evidence. In a number of his answers he had said that he fired to stop the driver of the car after it had, as he thought, struck Private Aindow. Accordingly there was, in the court's view, evidence on which the judge should have considered the defence under section 3 of the Act of 1967.


It should be noted in passing that the car did not, in fact, strike Private Aindow. The judge held that bruising found on Private Aindow's left leg was caused, not by the car, but by another soldier stamping on him in order to create the appearance that he had been struck by the car. In those circumstances, Private Aindow was charged with perverting the course of justice as well as attempted murder. He was convicted on the former count and sentenced to two years' imprisonment. His appeal on that count was dismissed.


Having held that there was evidence to raise the defence under section 3, the Court of Appeal went on to consider whether any miscarriage of justice had actually occurred by reason of the failure of the judge to consider that defence. Section 3 of the Act of 1967 allows a person to use "such force as is reasonable in the circumstances …". So the question for the Court of Appeal was whether Private Clegg, in firing the fourth shot, used only such force as was reasonable in the circumstances, or whether the force which he used was excessive.


In the course of his cross examination Private Clegg was asked whether he was aware of any circumstances which would have justified him in firing after the car had passed. He replied that he had no reason to fire at that stage.

"Q.29: And if you had fired any more you know of no justification for that action?"

"A.29: That's correct. That's why I applied my safety catch as the car went past me."


There was no suggestion in Private Clegg's evidence, as the Court of Appeal pointed out, that he thought that the driver was a terrorist, or that if the driver escaped he would carry out terrorist offences in the future. In those circumstances the use of lethal force to arrest the driver of the car was, in the court's view, so "grossly disproportionate to the mischief to be averted" that any tribunal of fact would have been bound to find that the force used was unreasonable. It followed that if the defence under section 3 had been raised, which it was not, it would have failed. Accordingly, Private Clegg's appeal was dismissed.


At the conclusion of the judgment delivered by the Lord Chief Justice of Northern Ireland, the court took the opportunity to make two important observations. The first relates to the so-called Yellow Card. That card is entitled "Instructions for opening fire in Northern Ireland." Paragraph 5 provides:

"You may only open fire against a person:

  • a) If he is committing or about to commit an act likely to endanger life, and there is no other way to prevent the danger. The following are some examples of acts where life could be endangered, dependent always upon the circumstances:

    • i) firing or being about to fire a weapon;

    • ii) planting, detonating or throwing an explosive device (including a petrol bomb);

    • iii) deliberately driving a vehicle at a person and there is no other way of stopping him.

  • b) If you know that he has just killed or injured any person by such means and he does not surrender if challenged and there is no other way to make an arrest."


The court observed that on the literal application of paragraph 5(b) read with paragraph 5(a)(iii) a soldier would be justified in opening fire where a person had been injured by a car, irrespective of the seriousness of the injury. The court considered it desirable for the army authorities to re-draft the Yellow Card to make it clear that a minor injury caused by a car does not justify a soldier in opening fire. The court's first observation does not call for any further comment from your Lordships. It is not suggested that the Yellow Card has any legal force.


It is the second observation which has given rise to the certified question of law. So it is desirable to quote what the court had to say in full.

"A further observation which we wish to make is this. The trial judge found that the fourth shot fired by Private Clegg killed Karen Reilly and that he had no legal justification for firing that shot. Under the existing law, having found that Private Clegg fired that shot with intent to kill or cause grievous bodily harm, the trial judge was obliged to find Private Clegg guilty of the heinous crime of murder which carries a mandatory sentence of life imprisonment, and it was not open to the judge to find Private Clegg guilty of the lesser crime of manslaughter where the judge can sentence the accused to the period of imprisonment which he considers appropriate in all the circumstances of the crime.

There is one obvious and striking difference between Private Clegg and other persons found guilty of murder....

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