1. [1995] 1 All ER 334. References to R v Clegg in this article all relate to this judgment; but subsequently there was a retrial, after the Court of Appeal in Northern Ireland held that new evidence suggesting that Clegg may not have fired when the car had passed the patrol after all was’ capable of belief: Guardian, 28 February 1998.

2. 253 HC Debs W A col 147 (24 January 1995). See also Daily Telegraph, 25 January 1995.Google Scholar

3. Home Office 1996. In these notes, the report will be cited simply as ‘Home Office Review’.

4. The report is not published by Her Majesty's Stationery Office, and the present author only obtained a copy after a lengthy series of calls to different departments within the Home Office.

5. A similar provision is in force in Northern Ireland; the differences are not material for the purposes of this article.

6. Home Office Review, paras 59, 84.

7. See the cases cited below nn 19, 24. The most controversial inquiry into the use of force by the security forces was the ‘Report of the Tribunal appointed to inquire into the events on Sunday 30th January 1972, which led to the loss of life in connection with the procession in Londonderry on that day, by Lord Widgery’ (HC 220 (1972)). Such was its political sensitivity that the announcement of a fresh inquiry, made on the eve of the twenty-sixth anniversary of the shootings (29 January 1998), was seen as being a significant gesture to encourage the nationalists to engage in the recent peace process: Daily Telegraph, 30 January 1998. Conversely, the continued imprisonment of the Scots Guards James Fisher and Mark Wright caused the government great embarassment at a time when convicted murderers in the IRA were released early in the run up to the recent peace referendum; see Daily Telegraph, 23 May 1998 and The Times, 4 June 1998.

8. Patrick Hodgson's first trial in December 1996 was halted ‘for legal reasons’, and the jury was unable to agree a verdict at his retrial. He was finally acquitted in October 1997, but the incident ‘has led to a wide-ranging review of police firearms procedures’: Daily Telegraph, 15 October 1997.

9. In addition to the investigation into Patrick Hodgson's case, the PC A are investigating the shooting of Diarmuid O’ Neill, an unarmed IRA suspect who was shot during a police siege in Hammersmith on 23 September 1996, and there is an investigation into the shooting of an unarmed man as he lay in bed during a morning raid in Hastings: The Times, 16 January 1998.

10. Home Office Review, para 71(a).

11. In February 1987, a Home Office working party produced guidelines for all police forces in the use of firearms: Circular 47/83. See Northam, G Shooting in the Dark (London: Faber, 1988) p 115 Google Scholar.

12. Soldiers in Northern Ireland are issued with a ‘yellow card’, which details the circumstances in which they may open fire. The document is technically a restricted one, but was quoted in some length during the post-Clegg debate in the Commons (253 HC Debs, cols 1000–1, 1012 (1 February 1995)), and those citations suggest that very little has changed from the 1980 version, which was cited in full by Asmal, K (chairman) ‘Shoot to Kill?’ International Lawyers' Inquiry into the Lethal Use of Firearms by the Security Forces in Northern Ireland (Cork: Mercier Press, 1985) p 75–76 Google Scholar.

13. In this article, I use the term ‘public servant’ to cover other officials charged with duties of law enforcement besides soldiers and/or policemen; however, I write specifically with the latter in mind. The Home Office too focused upon the law as it relates to soldiers and policemen but acknowledged that ‘an immigration or customs officer might equally find themselves [sic] in (a position involving conflict with other people)’: Home Office Review, para 66. When the Human Rights Act 1998, s 6(1) comes into force, the courts will have to define the meaning of a ‘public authority’ in cases where it is alleged that such a person has exceeded the limits of art 2 of the ECHR.

14. Below nn 63–98 and associated text.

15. Below nn 99–113 and associated text.

16. [1977] AC 105.

17. Jones, R v [1975] 2 NIJB.Google Scholar

18. [1977] AC 105 at 133,137. Of course, murder cases in Northern Ireland are decided by a judge sitting without a jury.

19. Per Hutton J in Lynch v Ministry of Defence [1983] NI 216 at 228 (emphasis added).

20. See the dissenting judgment of McGonigal LJ in the Court of Appeal in A-G's Reference [1976] NI 167 at 191–193 and Professor Sir John Smith, ‘Using Force in Self-defence and the Prevention of Crime’ (1994) 47 Current Legal Problems 101 at 118–120.

21. In the Court of Appeal in A-G's Reference, Jones LJ made the conjecture that there could be no such thing as an ‘inactive’ terrorist, and said that there could be no reason even to think that a member of a paramilitary organisation might not become a conspirator to acts of violence: [1976] NI 167 at 180. See further R Spjut ‘The Official Use of Deadly Force by the Security Forces against Suspected Terrorists: Some Lessons from Northern Ireland’ [1986] PL 38 at 49–52.

22. This was the conclusion of Asmal's inquiry, which said: ‘a soldier or police officer need only tell a Diplock court judge that he honestly and reasonably believed an innocent civilian to be a member of a paramilitary organisation … No immediate criminal action need be feared, merely the spectre of some form of success by a paramilitary group’: above n 12, para 112.

23. Farrellv Secretary of State for Defence [1980] 1 WLR 172.Google Scholar

24. Lynch v Ministry of Defence [1983] NI 216; Magill v Ministry of Defence [1987] NI 194; Kelly v Ministry of Defence [1989] NI 341.

25. Kelly v Uk Application No 17579/90 (January 1993). For criticism, see Professor Sir John Smith at (1994) 144 NLJ 354.Google Scholar

26. A similar comment applies to the case of the Scots Guards Fisher and Wright, who apparently pleaded self-defence as a justification (unsuccessfully) for shooting teenager Peter McBride in the back as he fled carrying a suspected bomb: Daily Telegraph, 23 May 1998. It is not clear whey they did not plead crime prevention.

27. [1995] 1 All ER 334 at 338.

28. Paragraph 11, Home Office Review.

29. [1971] 1 All ER 1077 at 1088, per Lord Moms.

30. [1977] AC 105 at 138. Commenting upon the influence of Palmer in this area of the law, the Review conceded that ‘the practical effect’ was that ‘it was only a defendant whose force was found to be demonstrably - in Clegg's case “grossly” - disproportionate who would be considered to have exhausted the margin of appreciation, and so be convicted of murder’: Home Office Review, para 13.

31. As Williams, Glanville commented, the dicta in Palmer appear to constitute ‘a way of escaping from the test of reasonableness without acknowledging the fact’: Textbook of Criminal Law (London: Stevens, 1983) p 507 Google Scholar. The test of reasonableness is, however, in self-defence just as in crime prevention, an objective one: R v Owino [1995] CLR 743–744: DPP v Braun (1998) Times, 26 October.

32. A-G's Reference [1977] AC 105 at 137.

33. See the judgment of Lowry LCJ in R v MacNaughton [1975] NI 203 at 208.

34. The 1980 version of the ‘yellow card’ only allows a soldier to shoot against a person when he ‘is committing or about to commit an act LIKELY TO ENDANGER LIFE AND THERE IS NO OTHER WAY TO PREVENT THE DANGER’ (para 3a) or if he has just killed or injured a person, ‘does not surrender when challenged and THERE IS NO OTHER WAY TO MAKE AN ARREST’ (para 3b).

35. This was confirmed by the House of Lords in R v Clegg [1995] 1 All ER 334 at 338.Google Scholar

36. See the judgments of Lowry LCJ in MacNaughton [1975] NI 203 at 208; Gibson LJ in the Court of Appeal in A-G's Reference [1977] AC 105 at 197; and Hutton J in R v Hegurty [1986] NIJB 25 at 40–41.

37. See Doran, S The use of force by the security forces in Northern Ireland: a legal perspective’ (1987) 7 LS 291 at 300–308.Google Scholar

38. Sixteenth Report of the Standing Advisory Commission on Human Rights (1990–91), paras 28, 34–38: Eighteenth Report of the Standing Advisory Commission on Human Rights (1992–93) at para 13 (iii): Twenty-First Report of the Standing Advisory Commission on Human Rights (1995–96) para 98.

39. General Provision I, Instrument on Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by consensus in the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 7 September 1990.

40. 187 HC Debs, cols 377-392 (6 March 1991).

41. See the response by David Trimble MP, ibid, cols 379–381.

42. 253 HC Debs, cols 991-1014 (1 February 1995).

43. Ibid. col 995.

44. Mr Brazier MP said that soldiers in his own regiment had told him that they were ‘deeply concerned that the case [Clegg] left them uncertain about where they stood’: (ibid, col 992) and that another soldier had told him that as a result of Clegg, ‘soldiers are increasingly uncertain whether they can trust the yellow card’ (ibid, col 993). This notwithstanding, Clegg, who testified at his trial that he knew of no reason to fire at the moment when (the judge found that) he did (above n 27) cannot be said to have been misled by the ‘yellow card’ into shooting unjustifiably. On the ambiguity in the ‘yellow card’ raised by Clegg, see below nn 67–68 and associated text.

45. Home Office Review, para 73.

46. The list of papers examined, and the people consulted, by the Home Office are given in paras 3–4; and the House of Commons debates in 1991 and 1995 are excluded. Still less excusably, there is no acknowledgment of any of the proposals made, or papers prepared, by the Standing Advisory Commission of Human Rights (above n 38).

47. Home Office Review, para 75.

48. Above n 42, cols 1012–1013.

49. Somewhat surprisingly, Lord Diplock himself acknowledged that the roles of public servants and private citizens are significantly different in the field of law enforcement, see A-G's Reference [1977] AC 105 at 136; but this seems not to have influenced his approach to defining the concept of ‘reasonable force’.

50. A-G's Reference [1977] AC 105 at 137, per Lord Diplock.

51. The offence of misconduct in public office may be committed by nonfeasance: R v Dytham [1979] QB 722.

52. In 1987 the then Home Secretary, Douglas Hurd, announced that greater emphasis would be placed ‘on the need for trainees to decide, under conditions of stress, whether to shoot, as distinct from how to shoot’: 109 HC Debs. col 562 (3 February 1987).Google Scholar

53. McCunn v Uk [1996] 21 EHHR 97 (para 149).Google Scholar

53a. See below n 119 and associated text.

54. Mark Urban (former Defence correspondent for the Independent) reports that: ‘An SAS officer argues that the soldier fighting terrorism must be given extra leeway compared to the ordinary citizen: “You are putting a hell of a lot of responsibility on young men to make split-second decisions. The armed forces have got to have a ‘fudge factor’…”’ ( Urban, M Big Boys Rules (London: Faber, 1992) p 76 Google Scholar.

55. See the cases cited above nn 23–24.

56. The argument that Corporal Jones had not acted in the presence of ‘an uplifted knife’ (and so should not enjoy the relatively lax interpretation of ‘reasonable force’ as expounded in Palmer above nn 29–30) was advanced by the then Attorney General for Northern Ireland, Samuel Silkin QC: [1977] AC 105 at 111; but the point seemed to be disregarded by Lord Diplock in his judgment.

57. See below nn 99–113 and associated text.

58. See above nn 30–34 and associated text.

59. Home Office Review, para 74.

60. Home Office Review, para 75.

61. Ibid.

62. See the remarks by Lowry LCJ in R v Thain [1985] NI 457 at 464.

63. Ninth Report above n 41 at para 27.

64. Above n 41 at col 380.

65. The criminal law generally recognises no legal definition of ‘serious’ (or ‘grievous’) bodily harm, and this has long been regarded as a question of fact: R v Metharam [1961] 3 All ER 200.Google Scholar

66. Special Provision 9, Instrument on Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

67. Lloyd, Lord ([1995] 1 All ER 334 at 338) echoed the concern of the Lord Chief Justice of Northern Ireland that para 5(b) of the ‘yellow card’, which allows a soldier to shoot (where necessary, and after a warning has been given) in order to effect the arrest of one who ‘has just killed or injured any person’, might be interpreted by a soldier so as authorize shooting one who was suspected of having inflicted only a minor injury upon another.Google Scholar

68. Nicholas Soames Mp told the Commons that: ‘an injury has never been considered to be sufficient justification on its own for opening fire. Nevertheless, we reacted immediately to the Lord Chief Justice's comments by issuing further written guidance to make that even more explicit’: 253 HC Debs, col 1012 (1 February 1995).Google Scholar

69. Above n 66.

70. Urban, above n 54 at 42–44.

71. A-G's Reference [1977] AC 105 at 137.

72. R v Beckford [ 19871 85 CAR 378.

73. McGuigan v Ministry of Defence [1982] 19 NIJB at 13–14.Google Scholar

74. Below, nn 99–113 and associated text.

75. Lord Diplock' s dicta in A-G’ s Reference were held to apply in the civil case Lynch v Ministry of Defence, above n 19 and associated text.

76. A-G's Reference [1977] AC 105 at 138.

77. See above n 63 and associated text.

78. Stewart v United Kingdom [1984] 7 ECHR 453.Google Scholar

79. A-G's Reference [1977] AC 105 at 135.

80. Lynch v Ministry of Defence [1983] NI 216.

81. Above n 20. Also see Jennings, A ‘Shoot to Kill: The Final Courts of Justice’ in A|Jennings (ed) Justice Under Fire (London: Pluto, 1988) pp 109–110 Google Scholar, who terms the proposition that someone can be shot because he or she might otherwise be involved in acts of violence at some time in the future as ‘an extreme theory of preventive policing’.

82. See above n 70 and associated text.

83. This, of course, was exactly the ruling which the Attorney General for Northern Ireland was seeking in 1975.

84. This was the graphic phrase used in Kelly v UK, above n 25.

85. See Professor Sir John Smith above n 20 at 118.

86. [1975] NI 203.

87. Ibid at 209.

88. Ibid at 208.

89. See Professor Sir John Smith above n 20 at 118.

90. See Hutton J in R v Hegarty [1986] NIJB 25 at 46: ‘it is not the function of the Court trying an accused who has fired a baton round to seek expressly or by implication to lay down guidelines as to the circumstances in which it is or is not a criminal offence to fire a baton round … The duty of the Court is to try the particular accused … having regard to the particular circumstances of the case.’.

91. See above n 72–89 and associated text.

92. A-G's Reference [1977] AC 105 at 111.

93. See above n 24.

94. Paragraph 20 of the 1972 version of the ‘yellow card’ had advised the soldier that:‘At a road block/check, you will NOT fire on a vehicle simply because it refused to stop. If a vehicle does not stop at a road block/check, note its description, make, registration number and direction of travel.’.

95. Doran notes this, and expresses concern at a possible discrete change in policy, above n 37 at 306–307.

96. See Doran, above n 37.

97. Paragraph 6 (a) of the 1980 ‘yellow card’ instructs the soldier that: ‘If you have to open fire you should fire only aimed shots.’ On the problems associated with alternatives to firing at the trunk of a fleeing suspect, see generally P Waddington ‘“Overkill” or “Minimum Force”?’ [1990] CLR 695.

98 ‘Above all, the Judge has the great responsibility of standing between the civil population and the Executive forces of the State, and of determining whether the powers of the latter have been exceeded’: per Hanna J in Lynch v Fitzgerald [1938] IR 382 at 399.

99. The European Court of Human Rights was sufficiently concerned at evidence arising from the Gibraltar killings that a member of the Sas may have continued to fire upon a dying man to warn the soldiers that: ‘(t)heir reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects’: McCunn v Uk [1996] 21 EHHR 97 (para 212).Google Scholar

100. See above n 43 and associated text.

101. See above nn 67–68 and associated text.

102. Assuming that this is the law; cf above n 89 and associated text.

103. Cf above n 44.

104. The defence provided in s 139 of the Mental Health Act 1983 applies to mistakes of law: M Gunn ‘Personal Searches of Psychiatric Patients’ [1992] CLR 767 at 770–771.

105. On the various different meanings of the word ‘belief’, see Griew, E. ‘Consistency, Communication and Codification: Reflections on Two Mens Rea Words’ in Glazebrook, P. (ed) Reshaping the Criminal Law (London: Stevens, 1978) p 69ffGoogle Scholar.

106. See Home Office Review, para 78.

107. [1995] 1 All ER 334 at 338.

108. Home Office Review, para 76.

109. Yip Chiu Cheung v R [1995] 1 AC 111.Google Scholar

110. Of course, the proposed defence would become a covert defence of ‘superior orders’ if it were to be held (wrongly) that the very fact that a superior officer had ordered an act to be done itself gave reasonable grounds for a belief that the act in question would be lawful. A useful analogy here may be drawn with the recent House of Lords case O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] CLR 432, where it was said that a police officer could not have ‘reasonable grounds’ to believe that an offence had been committed by a person simply because he had been ordered to arrest that person for the alleged offence.

111. See Williams, G Criminal Law: The General Part (London: Stevens, 1961) pp 296–298 Google Scholar, who cited a number of older cases showing that superior orders could give rise to a defence where they induced a reasonable mistake of law. The arguments in favour of such a doctrine have been well made by I Brownlee ‘Superior Orders - Time for a New Realism?’ (1989) CLR 396.

112. Home Office Review, para 79.

113. Fletcher, G observes in Rethinking Criminal Law (Boston: Little, Brown, 1978) p 811 Google Scholar that ‘in cases of mistakes of law … the judgment of the court serves to advise the public of the rule in question, and therefore in the future there is even less excuse for ignorance of the particular law’.

114. See above nn 20–25 and associated text.

115. See above nn 30–31 and associated text.

116. See above nn 45–62, nn 106–111 and associated texts for criticisms of the objections mounted by the Home Office Review.

117. McCann v Uk [1996] 21 EHHR 97.Google Scholar

118. See above n 29–36 and associated text.

119. In McCunn v Uk [1996] 21 EHHR 97 Google Scholar (para 155) the European Court of Human Rights said that the difference between the UK standard of justification and that which is required by the Convention ‘is not sufficiently great that a violation of Article 2(I) could be found on this ground alone’. But, it may be that the court did not make a thorough study of the Northern Ireland case law. The only judgment from which a passage is quoted (at para 135) is the dissenting one of McGonigal LJ in the Northern Ireland Court of Appeal in A-G's Reference, whose approach, whilst admirable, employs a standard of justification which is very far from that which has usually been applied (see above nn 19–24 and associated text).

120. In R v Kingston [1994] 3 WLR 519 Google Scholar Lord Mustill said that: ‘the criminal law must not stand still, and if it is both practical and just to take this step, and if judicial decision rather than legislation is the proper medium, then the courts should not be deterred simply by the novelty of it.’.

121. The concerns of their Lordships in Clegg are criticised by Professor Sir John Smith at (1995) CLR 418–419.

122. Ibid at 419.