R v Clegg [1995] UKHL 1

House of Lords
Between
RAppellantCleggRespondent
Before
Lord Keith of KinkelDate 19 January 1995
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal in Northern Ireland of the 30th day of March 1994 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the certified question be answered as follows:
"On the facts stated and assuming no other defence is available, the soldier or police officer will be guilty of murder and not manslaughter."
Cler: Parliamentor:

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

REGINA

v.

CLEGG

(APPELLANT)

(NORTHERN IRELAND)

ON 19TH JANUARY 1995

Lord Keith of Kinkel Lord Browne-Wilkinson Lord Slynn of Hadley Lord Lloyd of Berwick Lord Nicholls of Birkenhead

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-WIKINSON

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.

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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

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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.

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"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

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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. 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

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would reflect more clearly the nature of the offence which he had committed."

In the light of that observation the court concluded that Parliament should consider making a change in the existing law. The certified question arising out of the second observation is as follows:
"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?"
The certified question can be considered under the following heads:Does the existing law allow a verdict of manslaughter instead of murder where the force used in self-defence is excessive?Is the position the same where the excessive force is used in prevention of crime or in effecting or assisting in the lawful arrest of offenders?Is there any difference between the position of a soldier or police officer acting in the course of his duty, on the one hand, and an ordinary member of the public on the other?If a verdict of manslaughter is not available under the existing law in any of the above cases, is it open to this House to change the law?

The existing law

Strictly speaking, the first of the above issues does not arise on the facts of the present case. Since the danger had already passed when Private Clegg fired his fourth shot, there could be no question of self-defence, and therefore no question of excessive force in self-defence. But it is convenient to deal with this issue all the same, since it forms the background to the remaining issues.The starting point is the Report of the Royal Commission appointed to consider the law relating to indictable offences: (1879) 36 H.L. Papers 157. The chairman was Lord Blackburn. One of the members was Sir James Stephen. The underlying principle is stated at p. 167:
"We take one great principle of the common law to be, that though it sanctions the defence of a man's person, liberty and property against illegal violence, and permits the use of force to prevent crimes, to

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preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief which it is intended to prevent."In Note B. at p. 201 there is a lengthy discussion of the scope of the defence of self-defence in relation to homicide. Nowhere is it suggested that excessive force in self-defence reduces what would otherwise be murder to manslaughter. There is a specific provision in section 176 of the draft code for the reduction of murder to manslaughter in the case of provocation. There is no similar provision in the case of excessive force hi self-defence. It is clear from a note to section 176 that the commissioners were stating the law as they believed it to be.There does not appear to have been any development in the law until The Queen v . Howe (1958) 100 C.L.R. 448 decided by the High Court of Australia in 1958. There was an extensive citation of all the authorities in this corner of the law going back to Rex v. Cook (1640) Cro. Car. 537. The decision of the court is well summarised in the following paragraph of the headnote:
"Where a plea of self-defence to a charge of murder fails only because the death of the deceased was occasioned by the use of force going beyond what was necessary in the circumstances for the protection of the accused or what might reasonably be regarded by him as necessary in the circumstances, it is, in the absence of clear and definite decision, reasonable in principle to regard such a homicide as reduced to manslaughter."
Twelve years later the same point came before the Privy Council on appeal from the Supreme Court of Jamaica: see Palmer v. The Queen [1971] A.C. 814. Lord Morris of Borth-y-Gest, giving the opinion of the Privy Council, declined to follow Howe's case, preferring the decision of the West Indian Federal Supreme Court in De Freitas v. The Queen (1960) 2 W.I.R. 523.After setting out the elements of the defence of self-defence, he said at p. 832:
"... if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that the accused acted in self-defence or if the jury are in doubt as to this then they will acquit. 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."

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In other words, there is no half-way house. There is no rule that a defendant who has used a greater degree of force than was necessary in the circumstances should be found guilty of manslaughter rather than murder.In 1971 a Court of Appeal consisting of Edmund Davies L.J. and Lawton and Forbes J.J. approved and followed Palmer's case: See Reg. v. Mclnnes [1971] 1 W.L.R. 1600, at p. 1608:
"But where self-defence fails on the ground that force used went clearly beyond that which was reasonable in the light of the circumstances as they reasonably appeared to the accused, is it the law that the inevitable result must be that he can be convicted of manslaughter only, and not of murder? It seems that in Australia that question is answered in the affirmative . . . , but not, we think, in this country. On the contrary, if a plea of self-defence fails for the reason stated, it affords the accused no protection at all."
Of course, as the court pointed out, the verdict may be reduced from murder to manslaughter on other grounds, for example, if the prosecution fail to negative provocation, where it arises, or fail to prove the requisite intent for murder. But so far as self-defence is concerned, it is all or nothing. The defence either succeeds or it fails. If it succeeds, the defendant is acquitted. If it fails, he is guilty of murder.In a subsequent case in Australia, Viro v. The Queen (1978) 141 C.L.R. 88, the High Court decided by a bare majority over a strong dissent by Barwick C.J. to follow Howe in preference to Palmer. Mason J. suggested that in self-defence cases juries should be directed in accordance with six propositions which he formulated at the end of his judgment, and which, in his view, best accorded "with acceptable standards of culpability." But the propositions proved to be unworkable in practice. Juries found difficulty in applying, or perhaps even understanding them. As a result, a full court of seven judges was convened to reconsider the position in Zecevic v. D.P.P. (Victoria) (1987) 162 C.L.R. 645. The High Court decided by a majority of five to two to revert to the law as stated in Palmer and Mclnnes, and declined to follow Howe and Viro. Wilson, Dawson and Toohey JJ. said at p. 665:
"Believing, as we do, that the law as we have set it out is dictated by basic principle upon a matter of fundamental importance, it is unthinkable that the court should abdicate its responsibility by declining to declare it accordingly. It has the virtue of being readily understandable by a jury. It restores consistency to the law relating to self-defence whether raised in the case of homicide or otherwise. Finally, it has the effect of expressing the common law in terms which are in accord with the views expressed in Palmer (adopted in England in Mclnnes) and which are generally consonant with the law in the code States."

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The point raised in the present case might have arisen for decision by your Lordships in Attorney General for Northern Ireland's Reference (No. 1 of 1975) [1977] A.C. 105. That case also concerned a soldier on patrol in Northern Ireland. He shot and killed an unarmed man, who ran away when challenged. The trial judge found that, unlike the present case, the prosecution had failed to prove that the soldier intended to kill or cause serious bodily harm, and further found that the homicide was justifiable under section 3 of the Act of 1967 on the ground that the use of force was reasonable in the circumstances. The questions for the opinion of the House were first whether, on the facts set out in the reference, the soldier had committed a crime at all and secondly whether, if so, the crime was murder or manslaughter. The House held that the first question was not a question of law at all, but a pure question of fact, which, on the facts proved at the trial, had been answered in favour of the soldier; and that the second question, though a question of law, did not arise on the facts. But it is to be observed that Viscount Dilhorne said in relation to the second question at p. 148:
"I now turn to the second point of law referred, whether if a crime was committed in the circumstances stated in the reference it was murder or manslaughter. The Attorney-General indicated that he would like it to be held that it was manslaughter and, while I appreciate his reasons for doing so, I can find no escape from the conclusion that if a crime was committed, it was murder if the shot was fired with intent to kill or seriously wound. To hold that it could be manslaughter would be to make entirely new law. If a plea of self- defence is put forward in answer to a charge of murder and fails because excessive force was used though some force was justifiable, as the law now stands the accused cannot be convicted of manslaughter. It may be that a strong case can be made for an alteration of the law to enable a verdict of manslaughter to be returned where the use of some force was justifiable but that is a matter for legislation and not for judicial decision."
It is sometimes said that the law of Scotland allows a verdict of culpable homicide in cases of excessive force in self-defence. Thus in the report of the House of Lords Select Committee on Murder and Life Imprisonment, session 1988-89 (H.L. Paper 78-1), the Committee recommended in para. 89 that there should be a qualified defence of excessive force in self-defence, and noted that this would bring the law of England and Wales into line with the law of Scotland. But in Crawford v. H.M. Advocate [1950] J.C. 67 at p. 70, the Lord Justice-General, Lord Cooper, said that "the special defence of self-defence must either result in complete exculpation or be rejected outright."Counsel for the appellant, drew attention to a passage from Gordon, The Criminal Law of Scotland, 2nd ed. (1978) p. 765, as follows:

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"If a soldier kills while on duty, or in what he reasonably believes to be his duty, but the circumstances are not such as to justify his action because, for example, he acted hastily, or used more violence than was justifiable, he will be treated as guilty only of culpable homicide, unless the excess was gross."
But the context in which this was said is a list of so-called "unofficial categories" of culpable homicide, in contrast to legal categories such as provocation and diminished responsibility. The unofficial categories cover cases in which, as a matter of practice, only culpable homicide is charged although a charge of murder could properly be brought. In the present case Private Clegg was, of course, charged with murder.In Canada, the Supreme Court has rejected the Howe doctrine, in relation to self-defence as well as the use of force in the prevention of crime: see Gee [1983] D.L.R. 587 and Brisson [1983] D.L.R. 685.I do not find it necessary to go through the earlier English authorities relied on by counsel, since they were all reviewed at length by Lord Morris in Palmer's case. I respectfully agree with his analysis. Counsel did not advance any fresh arguments. In my opinion the law of England must now be taken to be settled in accordance with the decision of the Privy Council in that case. Thus the consequence of the use of excessive force in self-defence will be the same in the law of England, Scotland, Australia, Canada and the West Indies. I consider later whether, despite this uniformity, some change in the law may, nevertheless, be desirable.The second question is whether there is any distinction to be made between excessive force in self-defence and excessive force in the prevention of crime or in arresting offenders. In Attorney-General for Northern Ireland's Reference Lord Diplock said at p. 139 that the two cases were quite different. But I do not think it possible to say that a person who uses excessive force in preventing crime is always, or even generally, less culpable than a person who uses excessive force in self-defence; and even if excessive force in preventing crime were in general less culpable, it would not be practicable to draw a distinction between the two defences, since they so often overlap. Take, for example, the facts of the present case. The trial judge held that Private Clegg's first three shots might have been fired in defence of Private Aindow. But he could equally well have held that they were fired in the prevention of crime, namely, to prevent Private Aindow's death being caused by dangerous driving. As is pointed out in Smith and Hogan: Criminal Law 6th ed., p. 244, the degree of permissible force should be the same in both cases. So also should the consequences of excessive force.The third question is whether it makes any difference that Private Clegg was a member of the Security Forces, acting in the course of his duty. The argument in favour of making an exception to the general rule in such a case was put with great force by Mr. Samuel Silkin Q.C. A.-G. in the course

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of his submissions in the Attorney-General for Northern Ireland's Reference. At p. 112, he said:
"In considering whether in principle a verdict of manslaughter is possible one must consider two points: (a) The basis of this question is not simply a failed defence of justifiable homicide; honest belief in one's duty is an additional element and it must considered whether it makes a difference, (b) There has emerged from the recent cases a renewed vigour in regarding the common law as an instrument for enabling the courts to do what is just in relation to criminal offences and defences: see Director of Public Prosecutions for Northern Ireland v. Lynch [1975] AC 653 , 672, 684-5, 696-7. The common law is wide enough to achieve a just result without leaving the matter to the executive and, where its principles allow this, it should be done. In reducing the crime to manslaughter it is not the intention of the soldier which is relied on but his honest belief as to his duty. As to the use of excessive force, see Smith and Hogan, Criminal Law, 3rd ed. (1973), pp. 263-264. An unreasonable but honest man who killed might be guilty of manslaughter only."
The special position of a soldier in Northern Ireland is reflected in Lord Diplock's speech in the same case, at pp. 136-137:
"There is little authority in English law concerning the rights and duties of a member of the armed forces of the Crown when acting in aid of the civil power; and what little authority there is relates almost entirely to the duties of soldiers when troops are called upon to assist in controlling a riotous assembly. Where used for such temporary purposes it may not be inaccurate to describe the legal rights and duties of a soldier as being no more than those of an ordinary citizen in uniform. But such a description is in my view misleading in the circumstances in which the army is currently employed in aid of the civil power in Northern Ireland ... In theory it may be the duty of every citizen when an arrestable offence is about to be committed in his presence to take whatever reasonable measures are available to him to prevent the commission of the crime; but the duty is one of imperfect obligation and does not place him under any obligation to do anything by which he would expose himself to risk of personal injury, nor is he under any duty to search for criminals or seek out crime. In contrast to this a soldier who is employed in aid of the civil power in Northern Ireland is under a duty, enforceable under military law, to search for criminals if so ordered by his superior officer and to risk his own life should this be necessary in preventing terrorist acts. For the performance of this duty he is armed with a firearm, a self-loading rifle, from which a bullet, if it hits the human body, is almost certain to cause serious injury if not death."

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I would particularly emphasise the last sentence in the above quotation. 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 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 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 Queen [1994] 3 W.L.R. 514. 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, 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.Counsel sought to raise in his printed case a possible defence of provocation. But no such defence was raised before the trial judge, or in the Court of Appeal, where Private Clegg was represented by leading counsel. The point is not covered by the certified question, no doubt because it was never open on the evidence. I say no more about it.Counsel also sought to argue that the Court of Appeal ought not to have applied the proviso under section 2(1) of the Criminal Appeal (Northern Ireland) Act 1980 in relation to the defence under section 3 of the Act of 1967. There is nothing in that point. The Court of Appeal were entitled to hold, having reviewed all the evidence, that the use of lethal force to kill or wound the driver of the car in order to arrest him was, in the circumstances, so grossly disproportionate to the mischief to be averted as to deprive him of a defence under section 3, and that any reasonable tribunal of fact, if properly directed, would inevitably have so found. Accordingly, the Court of Appeal having raised the point itself, and having dealt with it fully and properly, was entitled to dismiss the appeal.Should the law be changed?I have already mentioned some of the arguments in favour of changing the law when dealing with the third question. They have never been

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expressed more persuasively, or with greater insight, than they were by the Court of Appeal in the present case. The ground had already been covered by the Criminal Law Revision Committee in its 14th Report in 1980 (Cmnd. 7844), at a time when the Australian law had not yet been brought back into line with Palmer's case. In paragraph 73 of the recommendations we find:
"Where a person kills in a situation in which it is reasonable for some force to be used in self-defence or in the prevention of crime but the defendant uses excessive force, he should be liable to be convicted of manslaughter not murder if, at the time of the act, he honestly believed that the force he used was reasonable in the circumstances."
In paragraph 59 of the Law Commission's Draft Criminal Code for England and Wales (1989) (Law Com. No. 177) we find:
"A person who, but for this section, would be guilty of murder is not guilty of murder if, at the time of his act, he believes the use of the force which causes death to be necessary and reasonable to effect a purpose referred to in section 44 (use of force in public or private defence), but the force exceeds that which is necessary and reasonable in the circumstances which exist or (where there is a difference) in those which he believes to exist."
Finally, the Select Committee on Murder and Life Imprisonment, to which I have already referred, found the argument in favour of a qualified defence of using excessive force in self-defence to be convincing. I would refer in particular to the memorandum prepared by Viscount Colville of Culross, vol. III, p. 542. These recommendations are all one way. They are entitled to great weight. But Parliament has not yet acted on them. The question thus arises whether this House can itself develop the law along the lines recommended, without waiting for the legislature. Encouragement to take such a course is to be found in the majority decision of the House in Director of Public Prosecutions v. Lynch [1975] AC 653 . In that case the question was whether duress was available as a defence to a person charged with aiding and abetting murder. The House held, by a majority, that it was. Lord Wilberforce said, at pp. 684-685:
"The broad question remains how this House, clearly not bound by any precedent, should now state the law with regard to this defence in relation to the facts of the present case. I have no doubt that it is open to us, on normal judicial principles, to hold the defence admissible. We are here in the domain of the common law: our task is to fit what we can see as principle and authority to the facts before us, and it is no obstacle that these facts are new. The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt, and particularly for setting the standards by which the law expects normal men to act. In all such matters as capacity, sanity, drunkenness, coercion, necessity, provocation, self-defence, the|

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common law, through the judges, accepts and sets the standards of right-thinking men of normal firmness and humanity at a level which people can accept and respect. The House is not inventing a new defence: on the contrary, it would not discharge its judicial duty if it failed to define the law's attitude to this particular defence in particular circumstances."But there are difficulties in adopting this broad approach in the present case, attractive though it might be. In the first place, Director of Public Prosecution v. Lynch has since been overruled by this House in Reg. v. Howe [1987] AC 417 . The dissenting speech of Lord Simon of Glaisdale in Lynch's case has been vindicated.Secondly, the background is different. The defence of duress was the creation of the common law. So also, of course, were the defences of self- defence and the use of force in the prevention of crime. The difference is that in the latter case Parliament has already taken a hand by enacting section 3 of the Criminal Law Act 1967. Parliament did not, in doing so, see fit to create a qualified defence in cases where the defendant uses excessive force in preventing crime.In Reg. v. Howe, one of the reasons given for overruling Lynch was that Parliament had not acted on a recommendation made by the Law Commission ten years before: see per Lord Bridge of Harwich at p. 437 and Lord Griffiths at p. 443. This reasoning has been criticised, with some justice, by Smith and Hogan at p. 233. There may be many reasons for a failure to legislate. But the criticism does not have the same force in the present case, where Parliament has indeed acted in the very field which is now in dispute, as well as in closely related fields, such as those covered by sections 2 and 3 of the Homicide Act 1957, section 2 of the Suicide Act 1961 and section 1 of the Abortion Act 1967.In his dissenting speech in Director of Public Prosecutions v. Lynch Lord Simon of Glaisdale said, at p. 695:
"I am all for recognising frankly that judges do make law. And I am all for judges exercising this responsibility boldly at the proper time and place - that is, where they can feel confident of having in mind, and correctly weighed, all the implications of their decision, and where matters of social policy are not involved which the collective wisdom of Parliament is better suited to resolve (see Launchbury v. Morgans [1973] AC 127 at pp. 136F-137A, 137G). I can hardly conceive of circumstances less suitable than the instant for five members of an appellate committee of your Lordships' House to arrogate to ourselves so momentous a law-making initiative."

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Like Lord Simon, I am not averse to judges developing law, or indeed making new law, when they can see their way clearly, even where questions of social policy are involved. A good recent example would be the affirmation by this House of the decision of the Court of Appeal (Criminal Division) that a man can be guilty of raping his wife (Reg. v. R. [1992] 1 AC 599 ). But in the present case I am in no doubt that your Lordships should abstain from law making. The reduction of what would otherwise be murder to manslaughter in a particular class of case seems to me essentially a matter for decision by the legislature, and not by this House in its judicial capacity. For the point in issue is, in truth, part of the wider issue whether the mandatory life sentence for murder should still be maintained. That wider issue can only be decided by Parliament. I would say the same for the point at issue in this case. Accordingly I would answer the certified question of law as follows. On the facts stated, and assuming no other defence is available, the soldier or police officer will be guilty of murder, and not manslaughter. It follows that the appeal must be dismissed.

LORD NICHOLLS OF BIRKENHEAD

My Lords,I agree that, for the reasons given in the speech of my noble and learned friend, Lord Lloyd of Berwick, this appeal should be dismissed.

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