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R v Clegg [1995] 1 AC 482 House of Lords

The defendant was a soldier serving in Northern Ireland. He was manning a vehicle check point along with four other soldiers. Other soldiers were stationed along the road before and after the place where the defendant was stationed. A car approached the first checkpoint and slowed down. It then accelerated at great speed with its headlights on full beam. Another soldier ordered the car to stop to no avail. All four soldiers at the checkpoint open fired on the car. The defendant fired three bullets as the car was approaching and a final bullet as the car was driving away. The final shot proved to be fatal, hitting a passenger who was in the back seat of the car. The car had been stolen and contained young 'joy riders' not terrorists. The defendant was convicted of murder and appealed to the Court of Appeal. His appeal was rejected on the grounds that in firing the last shot after the danger had passed, he had used excessive force in the circumstances. However, the Court of Appeal made the following observations:

"There is one obvious and striking difference between Private Clegg and other persons found guilty of murder. The great majority of persons found guilty of murder, whether they are terrorist or domestic murders, kill from an evil and wicked motive. But when Private Clegg set out on patrol on the night of 30 September 1990 he did so to assist in the maintenance of law and order and we have no doubt that as he commenced the patrol he had no intention of
unlawfully killing or wounding anyone. However, he was suddenly faced with a car driving through an army checkpoint and, being armed with a high velocity rifle to enable him to combat the threat of terrorism, he decided to fire the fourth shot from his rifle in circumstances which cannot be justified and the firing of his fourth shot was found to be unlawful.

It is right that Private Clegg should be convicted in respect of the unlawful killing of Karen Reilly and that he should receive a just punishment for committing that offence which ended a young life and caused great sorrow to her parents and relatives and friends. 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 Private Clegg of the lesser crime of manslaughter on the ground that he did not kill Karen Reilly from an 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 for the unlawful killing of Karen Reilly, we consider that a law which would permit a conviction for manslaughter would reflect more clearly the nature of the offence which he had committed."

The Court of Appeal for Northern Ireland certified the following point of law to the House of Lords

"Where a soldier or police officer in the course of his duty kills a
person by firing a shot with the intention of killing or seriously
wounding that person and the firing is in self-defence or in defence of
another person, or 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, but constitutes force which is excessive
and unreasonable in the circumstances, is he guilty of manslaughter
and not murder?"

House of Lords held:

In dismissing the appeal the House of Lords declined the opportunity to extend the defence available under s.3 Criminal Law Act 1967 to allow those who use excessive force which results in death to have manslaughter convictions substituted for a murder conviction. Whilst their Lordships were persuaded with the merits of such a change, any change must come from Parliament.
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