Justifying the use of firearms by policemen and soldiers: a response to the Home Office's review of...

Justifying the use of firearms by policemen and soldiers: a response to the Home Office’s review of the law on the use of lethal force’

Jonathan Rogers University College London

In January 1995, during the furore over the murder conviction of Private Lee Clegg,’ the Home Office announced2 a review of the law of murder as the House of Lords had declared it to be. In March 1996 the Report of the Inter- Departmental Review of the Law on the Use of Lethal Force in Self-Defence or the Prevention of Crime3 was completed and, if not exactly ‘published’, then at least available to interested members of the public4. The review was primarily concerned with the possibility of enacting a partial defence to murder, whereby a soldier or policemen who had used excessive force resulting in the death of a criminal suspect would be convicted only of manslaughter, but the Home Office also examined the possibility of giving statutory authority to the internal Army and police regulations upon the use of firearms, in order to clarify the concept of ‘reasonable force’. In the end,’ however, the Inter-Departmental Review (hereafter ‘the Review’) proposed no change to the law of murder nor of voluntary manslaughter, and neither did it propose any method of clarifying the concept of ‘reasonable force’. Accordingly, there is to be no amendment to the rather bare Criminal Law Act 1967, s 3 which provides no more than that:

‘( 1) 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 of persons unlawfully at large. (2) Subsection (1) shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.”

In a sense, there can be little surprise that the Review did not recommend a new plea of excessive defence in murder trials, since its members recognised

1. [ 19951 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. 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.

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that, quite apart from their own reservations about its viability in practice, such a move would involve ‘a more fundamental look at the scope and operation of the law on, and the penalty for, murder’.6 Such a ‘fundamental look’ was beyond their remit; and I do not propose to re-examine the debate in this article. But, there was no a priori reason why the Review should not have been persuaded by the arguments for seeking to distinguish within s 3 between thepublic servant who uses force in the purported execution of his duties and the ordinary cirizen who claims a justificatory defence. Indeed, there was every reason to take the view that the way in which the courts judge the actions of public servants is of primary importance. The use of force (and, a fortiori, the use of firearms) by servants of the state raises political concerns which are prone to be exaggerated if subsequent judicial inquiries into the incidents are seen to be flawed. Whereas, so far, most of the controversy has arisen in Northern Ireland,’ on the mainland too there has been recent controversy, after an (unsuccessful) prosecution for murder was brought against a constable,8 and a number of other incidents which are under investigation by the Police Complaints Authority (PCA).9

In this article, I shall focus upon the use of firearms against those suspected of participation in terrorist activities, this being the scenario which has prompted by far the most case law (in Northern Ireland); although, as the Review acknowledges, any change in the law relating to the use of firearms should have to be applied also to the use of other weaponry, such as CS gas, or to the use of plastic bullets.1° I shall argue that s 3 of the Criminal Law Act 1967 is in urgent need of amendment, and will criticise the Review for making only a cursory examination of one of the options by which this might have been achieved, viz, the statutory endorsement of the internal instructions issued to policemen” and

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 PCA 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 G Northam Shooting in the Dark (London: Faber, 1988) p 1 15.

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soldiers12 about the circumstances in which they may discharge their firearms. Whilst I agree (albeit for different reasons from those propounded by the Review) that this particular option would have been inappropriate, I shall suggest an alternative reform to s 3, namely that it should provide that the use of force by a public servant13 should be evaluated as a question of law to be decided by the judge in each case that comes before a c0~1t.l~ Since I anticipate that this might result in a judge ruling that a soldier or policeman has used excessive force in circumstances where the officer might yet have had good reason for believing that it was lawful to shoot when he did (most obviously, because he had been trained to shoot in such circumstances), I shall argue there ought also to be enacted an excuse, akin to a doctrine of mistake of law, to be available to a public servant or policeman in criminal trials.” The Review did consider this latter possibility, albeit as a separate measure, and I shall argue that its objections to this proposal are unsatisfactory as well.

EXAMINING THE NEED TO AMEND S 3 OF THE CRIMINAL LAW ACT 1967 AS IT RELATES TO THE USE OF FORCE BY SOLDIERS AND POLICE OFFICERS

The leading decision on the use of firearms by soldiers is that of the House of Lords in A-G’s Reference for Northern Ireland (No I of 1975)16 (hereafter cited as A-G ’s Reference), which arose from the unsuccessful prosecution of Corporal Jones,” who had shot a man who he believed to be a member of the Provisional IRA and who at the time was not heeding a call to halt. The House of Lords held that the reasonableness of force used under s 3 of the Criminal Law Act 1967 was a question of fact, to be decided by a jury (where there is oneI8) and that, on the facts before him, MacDennott J had been entitled to find that Corporal Jones had used reasonable force in the prevention of crime. The fact that Corporal Jones had not testified to any belief that his victim was about to participate in any

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 K Asmal (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. 13. In this article, I use the term ‘public servant’ to cover other officials charged with duties of law enforcement besides soldiers andor 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 99-1 13 and associated text. 16. [1977] AC 105 17. R v Jones [I9751 2 NIJB. 18. [ 19771 AC 105 at 133,137. Of course, murder cases in Northern Ireland are decided by a judge sitting without a jury.


immediate act of violence prompted one Northern Ireland judge to hold that the ratio of the judgment in A-G’s Reference had been that -

‘the “prevention of crime” referred to in section 3( 1) of the Criminal Law Act (Northern Ireland) 1967 includes the prevention of crime which would be committed in thefuture by the IRA and not just the prevention of crime which the person who is killed or injured is about to commit or is in the act of committing when the force is used against him.’I9

It need hardly be demonstrated that it is a dangerous doctrine whereby a soldier may shoot to kill a suspected terrorist on the ground that the latter may, at some unspecified time in the future, commit or participate in some unspecified act of violence.20 Indeed, if one were to accept, as one senior judge apparently did,*’ that a member of a paramilitary organisation inevitably would participate in an act of violence, then the judgment in A-G’s Reference could be seen to countenance the shooting of suspected members of proscribed organisations, per se.22 True, if the question whether ‘reasonable force’ has been used is one of fact, then, whilst it would not be open to a judge to reject a plea under s 3 on the ground simply that the soldier had sought to prevent a ‘future’ atrocity, a judge could, in theory, still reject a defence upon the particular facts of a case. But, in fact, there never arose a case in which it was thought that a soldier who shot at a terrorist suspect, on account of the crimes which he might have committed if allowed to remain at liberty, had used excessive force. Following A-G’s Reference there was a series of controversial verdicts for the Ministry of Defence in civil cases in Northern Ireland, upon not dissimilar facts. One case featured soldiers who shot some men who were thought to have attempted to plant a bomb at a bank, and had fled when ~hal lenged;~~ the others involved soldiers at Army checkpoints who shot at cars which were either dangerously driven towards them, or at least driven in such a way that made it clear that the driver was determined not to stop.” The lowest point in the litigation came in Kelly v UK, when even the European Commission of Human Rights held that soldiers who fired upon a car driven by young joyriders past an Army checkpoint were justified in doing so, since the occupants, qua suspected terrorists, might have carried on to commit criminal acts, thereby ‘encouraging the continuance of the armed insurrection

19. Per Hutton J in Lynch v Ministry of Defence [ 19831 NI 216 at 228 (emphasis added). 20. See the dissenting judgment of McGonigal LJ in the Court of Appeal in A-G’s Reference [I9761 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 1 18-120. 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: [ 19761 NI 167 at 180. See further R Spjut ‘The Official Use of Deadly Force by the Security Forces against Suspected Terrorists: Some Lessons from Northem Ireland’ [ 19861 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 1 12. 23. Farrell v Secretary of State for Defence [1980] I WLR 172. 24. Lynch v Ministry of Defence [ 19831 NI 216; Magill v Ministry of Defence [ 19871 NI 194; Kelly v Ministry of Defence [ 19891 NI 34 1.

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and all the misery and destruction of life and property that terrorist activity in Northern Ireland has entailed’.25

It should be noted in passing that the decision of Campbell J in the first trial of Private Clegg in no way marked a change in approach from the Northern Ireland judiciary. Private Clegg had relied, in retrospect too inflexibly, upon the plea of self-defence.26 He did not testify that he believed the joyriders (one of whom he shot dead) to be terrorists and even said that he knew of no justification for firing upon the car after it had passed the soldiers.*’ Thus, when his plea of self-defence failed (as it did at the time) there was simply no evidential basis for a defence of crime prevention for the judge to consider. Given that the Review was commissioned in the wake of Clegg, it is somewhat incredible that this point was not made in the Review, which appears to proceed upon the premise that the line between ‘reasonable force’ and ‘excessive force’ can be a ‘thin’ one.28 There is no acknowledgment that Clegg’s defence strategy at the first trial had been badly handled, and that a mere statement from Private Clegg that he had believed his victims to be terrorists would probably have resulted in an acquittal; in which case, in the absence of any perceived public concern about the law, the Home Office would probably never have commissioned the Review at all.

Another problem in A-G’s Reference is that no attempt was made to distinguish the law which is applicable to public servants from that which applies to ordinary citizens who plead either self-defence, or a defence under s 3. In Palmer v RZ9 it was said that ‘if a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken’. Lord Diplock said much the same in A-G’s Reference: the judge or jury whose lot it was to decide whether or not a soldier had used reasonable force in the prevention of crime should bear in mind ‘all the stresses to which he was exposed’, and remember that, unlike the members of the court judging the situation in hindsight, the soldier would have had only ‘a second or two’ in which to decide whether or not to shoot.” This seems to mean that a soldier’s own perspective of the lawfulness of his use of force should have some direct bearing upon the jury’s conclusion,3‘ and the question becomes,

25. Kelly v UK Application No 17579/90 (January 1993). For criticism, see Professor Sir John Smith at (1994) 144 NLJ 354. 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 1 1, Home Office Review. 29. [I9711 1 All ER 1077 at 1088, per Lord Moms. 30. [ 19771 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 Glanville Williams 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. The test of reasonableness is, however, in self-defence just as in crime prevention, an objective one: R v Owino [ 19951 CLR 743-744: DPP v Braun (1998) Times, 26 October.


not so much whether the defendant used ‘reasonable force’, but whether, all things considered, he ‘reacted reasonably’ - a formula which encompasses a range ofjustificatory and excusatory factors. In addition, Lord Diplock said that the tribunal of fact should only find that a soldier (just like anyone else) had used excessive force if:

‘no reasonable man (a) with knowledge of such facts as were known (or believed) by the accused. . . to exist (b) in the circumstances and time available to him for reflection (c) could be of the opinion that the prevention of the risk of harm to which others might be exposed if the suspect were allowed to escape justified exposing the suspect to the risk of harm to him that might result from the kind of force that the accused contemplated using.’32

This seems to mean that there may be some shootings which, although perhaps not strictly justifiable, are none the less lawful if it is a response which some people who might be accounted as ‘reasonable’ would have deemed to be appropriate. But, presumably, there are some reasonable men who would instinctively over-react when confronting a terrorist suspect (and maybe a few who believe that soldiers should be allowed to do ‘whatever it takes’ in fighting the war against terrorism); and yet there is nothing in Lord Diplock’s judgment which suggests that greater discipline in the use of firearms is to be expected from a soldier. Neither is there any indication that a soldier in Northern Ireland should be expected to comply with his instructions upon the use of his firearm and that non-compliance should be a factor which detracts from the reasonableness of his conduct. It is notable that those versions of the ‘yellow card’ which have been published have been more restrictive than the common law33 (in particular, the card only authorises a soldier to shoot a person who was about to endanger someone’s life,34 whereas the common law apparently contemplates the shooting of unarmed fleeing citizens, provided that they are believed to be members of proscribed organisations). However, in the cases following A-G’s Reference where soldiers shot suspected terrorists as they fled, the approach has tended to be that since the card has no legal force (which has never been in any breach of its provisions is irrelevant to determining the question of reasonable force.36

When one combines the various features of the present law - a soldier may shoot in order to prevent a future, unspecified crime, the jury need only consider whether a reasonable man might have thought that the shooting was lawful (and should take into account all such factors as the short time available for reflection, and the defendant’s belief that he had acted lawfully) and that a breach of the

32. A-G’s Reference [I9771 AC 105 at 137. 33. See the judgment of Lowry LCJ in R v MucNuughton [ 19751 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 [ 19951 1 All ER 334 at 338. 36. See the judgments of Lowry LCJ in MucNuughfon [ 19751 NI 203 at 208; Gibson LJ in the Court of Appeal in A-G’s Reference [ 19771 AC 105 at 197; and Hutton J in R v Hegurty [ 19861 NIJB 25 at 40-4 1.

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internal instructions need carry no adverse consequences - the case for a reform of some nature becomes unanswerable. A number of options for reform were discussed in an article in an earlier volume of this j ~ u r n a l , ~ ’ but since then, one option in particular has stood out, namely that the ‘yellow card’ (and along with it, the authorisation cards relating to the use of firearms which are issued to other soldiers and to police officers) should be given legal force. This would effectively enact a statutory checklist of the circumstances in which a soldier or policeman would be justified in opening fire. The Standing Advisory Commission on Human Rights (Northern Ireland) (SACHR) has been the most active body in advocating what they tern1 a ‘statutory code of g ~ i d a n c e ’ ’ ~ and in its Sixteenth Report the Commission pointed out that such a move had been required by a recent Instrument from the United nation^.'^ The Report was debated in the House of Commons, where Kevin McNamara MP proposed a new CI 17 to the Northern Ireland (Emergency Provisions) Bill 199 1, in order to give effect to the Commission’s recommendations.4” The proposal was overwhemingly defeated, but the objections were aimed at the actual coiltents of the proposed ‘statutory code of guidance’, rather than against the principle of enacting any such code at all?’ Five years later, when the House of Commons debated the use of lethal force by soldiers in the aftermath of R v Clegg,4* a Conservative MP, Julian Brazier, also argued that the rules of engagement should be given legal force, or:

‘[if] that is thought to be too inflexible and impractical, an alternative would be to allow an absolute defence in law - not a defence that would somehow downgrade a murder charge - that a soldier reasonably believed that he was operating within the rules of engagement laid down on the yellow card on the advice of the Government’s Law Officers.’43

Interestingly, Mr Brazier was arguing from a wholly different perspective from that of Mr McNamara five years previously. Whereas the latter had wanted a statutory code of conduct in order to curb the perceived excesses of the security forces, Mr Brazier was concerned that, since the ‘yellow card’ had no standing in law, it was possible for a soldier to comply with its provisions

37. See S Doran ‘The use of force by the security forces in Northern Ireland: a legal perspective’ (1987) 7 LS 291 at 300-308. 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 ( 1 995-96) para 98. 39. General Provision 1, Instrument on Basic Principles on the Use of Force and Firearms by Law Enforcement OSficials, 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 379-38 1. 42. 253 HC Debs, cols 991-1014 (1 February 1995). 43. Ibid. col995.


and still be convicted of murder.44 Thus, the proposal was supported not only by the Standing Advisory Commission on Human Rights, but also by MPs at opposite ends of the political spectrum. The Home Office’s response was awaited with interest.

THE ARGUMENTS AGAINST GIVING LEGAL FORCE TO THE ‘YELLOW CARD’ AND TO OTHER INTERNAL CODES OF GUIDANCE

The Review gave only a derisory consideration to the issues involved in amending s 3 of the Criminal Law Act so as to make compliance with the various authorisation cards determinative of the issue of ‘reasonable force’. It listed just one advantage from the proposal, namely ‘the attraction of offering protection to members of the security forces’ .“5 (From this alone, it is evident that Mr Brazier MP had submitted his views to the Home Office; but there is no indication that the members of the Review had read Mr McNamara’s reasons for advocating the same measure, or even that they were aware of the previous Commons debate in 1991.4h) Among the three objections mounted by the Review, the main one appeared to be that the reform ‘would have the appearance of writing a separate law for the police and armed force^'.^' In fact, the same concern could be raised about the present law. Although the law in A-G’s Reference is stated so as to apply equally to public servants as it does to ordinary citizens, its content is such that, in practice, it must be applied more favourably to the public servant. No court would entertain a defence under s 3 of the Criminal Law Act 1967 where a member of a paramilitary organisation has gunned down a member of a rival terrorist group because he believes that otherwise his victim would have ‘eventually’ assassinated one of the members of his own group. But more disturbingly, in expressing their concern, the Review seems to be faithfully recycling the position of the government rather than reviewing it. During the Commons debate in the immediate aftermath of R v Clegg, Nicholas Soames MP, then Minister of State for the Armed Forces, had said that the government believed it to be -

‘important to the credibility of the actions of the security forces in Northern Ireland that, except where there is a clear need to give them additional powers,

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.

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they are seen to be operating within exactly the same laws as those applying to any other citizen. Of course, there is a respectable opinion that the situation which they face in carrying out their specific duty to maintain law and order should be recognised in the construction and application of the criminal law; equally, there are many who think it wrong in principle to accord them exceptional status of that kind.’48

This is not the place to review the doctrine of ‘citizens in uniform’ as it applies generally to soldiers and policemen; but it is surely grossly inappropriate in the discrete area of regulating their use of fi1-earms.4~ Unlike the private citizen, both policemen and soldiers may commit a disciplinary offences0 or even a criminal offenceS’ if they fail to shoot in circumstances where they would have been justified in doing so. The other side of the coin is that they are carefully selected for their duties in law enforcement, and their training programme places emphasis upon the (virtually instantaneous) taking of the decision to open fire upon a s~spect .~’ Thus, not only are their instructions very familiar to them, but they are much better able to adhere to their demanding standards. Moreover, ordinary citizens surely have a right that those who are appointed by the state to enforce law and order (powers which may, mistakenly, be enforced against them) operate under more demanding constraints than those standards which apply to their own actions. The arguments are apparently accepted by the European Court of Human Rights, which recently said that art 2 requires that ‘a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society”.’s3 So the compromised test of ‘reasonable force’ which is to be found in A-G’s Reference should be insufficient to justify the actions of public servants. Quite possibly, it violates art 2 of the

Of course, the soldier in Northern Ireland, unlike the ordinary citizen, operates under great pressure on account of his duty to confront dangerous criminals (often with the result that his life is in danger even when he is off duty). It has been suggested that any move to regulate the law on the use of firearms (such as the proposal under consideration) would not make proper allowance for this fact0r.5~ But, it is not clear that the pressures of duty make a substantial difference to a

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 [ 19771 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 [I9771 AC 105 at 137, per Lord Diplock. 51. The offence of misconduct in public office may be committed by nonfeasance: R v Dytham [ 19791 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). 53. McCunn v UK [ 19961 21 EHHR 97 (para 149). 53a. See below n 1 19 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’. . .”’ (M Urban Big Boys Rules (London: Faber, 1992) p 76.


soldier’s capacity to follow his training when called upon to do so. Certainly, its significance is easily overstated. None of the controversial cases in Northern Ireland involved public servants who sought to defend themselves in moments of panic. Rather, they involved defendants who shot at fleeing terrorist suspects, not in order to meet an imminent threat to life but rather in order to prevent them from escapingss Although split-second decisions are still demanded in such situations, it is not as though any of the soldiers concerned were acting in the presence of an ‘uplifted knife’.s6 In any case, the arguments about whether i f is just to record a criminal conviction against a soldier or policeman who uses excessive force, but in good faith, ought to be addressed separately from the actual justifiability of his actions. Assuming that we can aspire to impose a universal standard of conduct among public servants, the courts should enforce these standards when declaring whether or not a public servant has used ‘reasonable force’ (whilst at the same time allowing a separate excuse for the officer who does not deserve a criminal conviction5’). The effect would be that, whereas the private citizen who pleads a defence under s 3 would continue to be judged under the test in A-G ’s Reference, which combines a range of justificatory and excusatory factors,58 the soldier or policeman would have available two defences where the functions of justification and excuse are neatly separated. The justification would exonerate the officer who has met the rigorous standards to be expected from the trained personnel of the state; the excusatory defence should insure him against an unjust conviction. This is not so much ‘writing a separate law for the police and armed forces’ (pace the Review) but rather (pace Mr Soames MP) recognising their distinct position in law enforcement ‘in the construction and application of the criminal law’.

The Review offered two other, relatively minor, reasons for not giving proper consideration to the proposal to give any legal force to the instructions issued to policemen and soldiers. First, it was pointed out that the ‘yellow card’ and police authorisation cards were abbreviated documents, ‘supplemented by more detailed guidance and training scenario^',^^ which were subject to frequent change, and would thus be inappropriate for parliamentary approval. This does not seem to explain why the contents of the ‘abbreviated’ document only, which does little more than advise its recipients as to when it may be justifiable to open fire, should not be approved. The ways in which the police and the Army train their recruits in order to comply with their Instructions could be left to their own governance. Secondly, the Review hinted that, if the contents of the ‘yellow card’ were to be given legal force, so that judging the soldier’s use of force would become merely a matter of statutory interpretation for the judge, this might be opposed by the judiciary.m This fear was, to say the least, not well documented. The Review cited the Northern Ireland Court of Appeal in R v Clegg, who said that not every

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: [I9771 AC 105 at 11 1; but the point seemed to be disregarded by Lord Diplock in his judgment. 57. See below nn 99- 1 13 and associated text. 58. See above nn 30-34 and associated text. 59. Home Office Review, para 74. 60. Home Office Review, para 75.

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soldier who fell within the literal terms of the yellow card would, ips0 facto, be found to have used reasonable force;6’ but this just seems to restate the present position (that the card has no legal force) rather than to suggest that the card should nor assume legal relevance. In fact, a former Lord Chief Justice62 in Northern Ireland once appeared to advocate that Parliament should declare the law as it deemed appropriate, thus leaving the judges with their more familiar role of interpreting legislation, and relieving them from the responsibility of having to make evaluations which, one way or the other, are likely to prove controversial in some cases.

The two major difficulties in statutory intervention

However, although the Review is utterly unconvincing in its objections to giving legal force to the ‘yellow card’ or to any other written instructions, there would be two major difficulties in doing so. Both problems relate to defining the circumstances in which it may be justifiable to open fire upon a suspect. The first difficulty would lie in drafring the document, in such a way as to prohibit certain excessive uses of force, whilst at the same time allowing a soldier or policeman to shoot on those rare occasions where the general prohibition should not apply. The second difficulty would lie in interpreting the document. Some provisions would inevitably resort to using phrases such as ‘serious injury’ or ‘imminent risk’, and, in interpreting these phrases, the judge would effectively be making his own evaluation of the soldier’s use of force after all.

The difficulties in drafting can best be perceived by way of an illustration. Suppose that one wanted expressly to prohibit the use of firearms to prevent crimes against property, with no attendant risk to human life (or even if one did not make such a provision, but instead insisted upon some risk to human life in order to justify any use of firearms). How could such a provision be drafted whilst leaving open the possibility of justifying a soldier who shoots to defend property in the most extreme of circumstances? Consider the IRA bomb attack upon the RUC station at Loughgall in 1987, which was timed to occur after the station had closed at 7 pm (or, alternatively, consider an uninhabited building of great historical or cultural value on the mainland, eg one of the residences of the Royal Family). If the attack was only learnt about at the last minute, could there be any doubt that a soldier (already stationed near the scene) should be authorised to shoot, if necessary, in order to prevent the outrage? One can imagine that the potential effects of such an attack would be devastating in such a troubled spot as Northern Ireland. The attack would be a highly symbolic victory for the cause of terrorism against the forces of law and order, and the success of the coup might well encourage future terrorist attacks. The attack would become a supreme act of intimidation if it then became known that the security forces knew of the attack but were legally impotent to prevent it. In addition to the millions of pounds worth of damage to the station, it is not difficult to see that there would be a public interest in allowing a soldier to shoot in order to prevent such an attack; but the difficulty in drafting a statutory provision which could cater for such extreme scenarios whilst retaining a generally restrictive approach to the use of firearms would be considerable. Of course, one could always prohibit the use

61. Ibid. 62. See the remarks by Lowry LCJ in R v T h i n [ 19851 NI 457 at 464.


of firearms in order to defend property and simply add such a proviso as ‘save in exceptional circumstances’; but this would bring us to the second difficulty, that of interpretation.

The problems in interpretation become evident upon looking at previous proposals for codification upon the circumstances in which firearms might be used in order to prevent crime. For example, in its Ninth Report,63 the SACHR suggested that a statutory amendment to s 3 of the Criminal Law Act 1967 should only authorise the use of firearms when it was ‘immediately necessary . . . to protect life or prevent serious injury’. As noted by David Trimble MP in the House of Commons,M it would not be easy to define a ‘serious’ injury. If a judge or jury had to decide whether an anticipated injury would have been ‘seri0us’,6~ they would surely consider the circumstances and the context of the anticipated injury, and their application of the statutory phrase ‘serious injury’ to the facts before them would be tantamount to imposing their own evaluation of the reasonableness of the force used. This would defeat the object of statutory intervention - to clarify the scope of the powers of policemen and soldiers, and to make the judge’s function an essentially interpretive one. The same problem arises from the United Nations’ formula ‘particularly serious crime involving a grave threat to life’.% Presumably, the word ‘grave’ means ‘substantial’ or ‘sufficiently serious’, but how could such an uncertain calculus of probability be of any assistance in clarifying the law? If a terrorist suspect threatens to kneecap an informer, would that present a ‘grave’ threat to life, or just a remote threat? Would it depend upon the terrorist’s expertise in inflicting non-fatal injuries? The problem is intractable, yet it cannot be sidestepped. A certain level of violence musr surely be anticipated if a soldier is to justify a shooting; indeed, after the House of Lords in R v Clegg criticised the ‘yellow card’ for not making it clear that the mere causation of an ‘injury’ by a car could not justify a soldier in opening fire,67 the government moved swiftly to amend the document.68

Another clause, borrowed from a UN Instrument, which met with the approval of the SACHR in its Sixteenth Report was one which seemed only to countenance the use of firearms to meet ‘the imminent threat of death or serious injury’.69 Of course, as a method of tightening the law as it stands at present, one can understand why a restriction to ‘imminent’ threats of criminal behaviour holds some attraction. But the word ‘imminent’, in a document with legal force, might

63. Ninth Report above n 41 at para 27. 64. Above n 41 at col380. 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 [ 19611 3 All ER 200. 66. Special Provision 9, Instrument on Basic Principles on the Use of Force and Firearms by Luw Enforcement OfJicials. 67. Lord Lloyd ([ 19951 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 authorise shooting one who was suspected of having inflicted only a minor injury upon another. 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). 69. Above n 66.

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create a new danger, namely that some potentially devastating crimes could not be lawfully prevented because they were not yet ‘imminent’ in any ordinary sense of the word. For example, it has been reported that a member of the intelligence services in Northern Ireland once shot a member of the INLA as he and a colleague, who had just commandeered the officer’s car, were about to drive away in it.70 Although the theft of the car itself was not so serious as to justify the use of firearms, in the circumstances the theft could have posed great longer term danger to the lives of others. The car would have been equipped with covert radios, surveillance and other sensitive material related to intelligence activity. Such information might have been used by terrorists in planning future attacks, or in identifying and eliminating informers. One imagines that it would have been almost impossible to have prevented all the different murderous attacks which might have followed from the theft of the car other than by shooting, so we are left with a real-life scenario where it may arguably be immediately necessary and reasonable to shoot in order to prevent a murder without the threat of any murder being yet ‘imminent’ - in any ordinary sense of the word. Such a case, if it ever came to court, and if the clause proposed by the SACHR were to have been given legal force, would either result in an arguably perverse conviction, or would prompt a judge to adopt a contextual interpretation of the word ‘imminent’, which returns us to the problem identified in the previous paragraph - some statutory words or phrases would need to be interpreted imaginatively in order to conceal the fact that the judge would still be making his own evaluations upon the reasonableness of a soldier’s use of force.

In conclusion, then, it is submitted that the Review was right not to recommend that the rules of engagement which are issued to soldiers and policemen be given legal force - albeit for the wrong reasons. The true objections to such a move would be the difficulty in drafting a document and in interpreting it. If the process of interpretation would, in difficult cases, effectively require the judge to make his own evaluation of the force used in any case, then the best method of reform must surely be to address the manner in which the evaluations are presently made. I now present my own arguments suggesting how this might be done.

EVALUATING THE SOLDIER’S (OR POLICEMAN’S) USE OF FORCE AS A QUESTION OF LAW

If a statutory code of conduct is an unsuitable method for regulating the uses of firearms by public servants, then it is inevitable that each case which comes before a court will have to be judged on its own merits. But that does not mean that it should be for a jury (where there is one) to decide what circumstances may justify the use of firearms. When a soldier or policeman shoots in order to prevent crime, then the case raises the issues of the powers of the armed forces of the state and the rights of civilians at their hands, and the extent to which certain anticipated crimes threaten the infrastructure of society. These are matters of public policy which are not suitable for determination by a jury. It is submitted that determining the reasonableness of a public servant’s use of force should always be a question of law for the judge. So, when the public servant pleads

70. Urban, above n 54 at 42-44.


the defence of crime prevention, it should be for the judge to balance the risks of harm to the victim, and to any bystanders (who may be known to be innocent of any wrongdoing) against the risks of the harms which might have accrued if the victim had not been prevented from committing whatever crime D believed that he intended to commit. If the judge rules that the competing risks of harm balance each other, he should direct the jury to acquit, if they find the appropriate facts. But if, even on D’s account of the facts, the judge rules that D used excessive force, there should be no defence under s 3( 1) of the Criminal Law Act 1967 to go to the jury.

Although this change from the present law (where determining the reasonableness of the use of force is a question of fact no matter who is on trial7’) may seem to be modest in comparison to the traditional proposals for some kind of statutory checklist on the circumstances in which it is justifiable to open fire, it is submitted that it would none the less be effective in regulating the activities of soldiers and policemen. The judgment would create a precedent on its facts, and any appeal would address the substantive issues in the case (whereas, at the moment where the determination of ‘reasonable force’ is a question of fact, an appeal against the verdict addresses only the question whether the tribunal of fact was entitled to decide as it did). Moreover, if the evaluation of a soldier or policeman’s use of firearms were to be a question of law, one would expect that a judge would wish to concentrate upon the justificatory factors (ie did the circumstances warrant the use of firearms, with the high attendant risk to life, and were there any feasible alternatives?) in order to render a judgment in accordance with established legal principles. It would, on the other hand, be hard for a judge to say how much emphasis should be placed upon some of the excusatory factors mentioned in A-G’s Reference (such as the pressures of military service, or the fact that a soldier had only a few seconds in which to decide whether or not to shoot). Consequently, one should expect that there would develop rules of law as to what factors are, and which are not (legally) relevant in order to guide a judge in making his evaluation, some of which rules have not yet been developed, and are unlikely to be developed, whilst the whole question of ‘reasonable force’ is shunted off to the jury.

I would suggest that the following rules should be developed by the judges in their determinations of ‘reasonable force’.

1 The irrelevance of the soldier’s perspective

I am referring here to the factors mentioned in A-G’s Reference, namely the soldier’s erroneous belief that he was using only reasonable force, and any other factors which might have caused him to use excessive force. It is submitted that all such excusatory factors should be disregarded. The fact that the soldier or policeman on trial was not able to entertain a lengthy balancing test of the respective harms should not encourage the court to abandon its duty to do so. I am not referring, however, to the soldier’s perception of the circumstances in which he shoots; his use of force should continue to be judged upon the facts as he believed them to be72 (eg he may have thought that he recognised V as a wanted

71. A-G’s Reference [1977] AC 105 at 137. 72. R v Beckford [ 19871 85 CAR 378.

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fugitive, or that V was armed). If D makes an unreasonable mistake about the circumstances in which he shoots, even though his consequent use of force would have been reasonable had he been correct, he would be liable in a civil and that, it is submitted, is enough.

This is not to say that all the mitigating factors which may account for a soldier or policeman’s use of excessive force should be disregarded. It will be submitted that where he has reasonable grounds for (wrongly) believing that he used only reasonable force, he should be entitled to a separate excuse, but that this excuse should only be recognised in criminal p r0~eed ing . s .~~ In this way, the interpretation of s 3( 1) of the Criminal Justice Act 1967 will remain strictly justificatory in cases involving public servants, while justice may still be available in hard cases. In civil cases, however, only the stricter justificatory interpretation of ‘reasonable force’ under s 3( 1) of the Criminal Law Act 1967 would be a defence. Thus, the Ministry of Defence will be liable to compensate a civilian who has been injured because a soldier’s instructions and training have misled him upon the circumstances in which he may open fire. There seems to be no good reason why a civilian should bear the loss from any excessive use of force by a public servant, regardless of whether that person was sufficiently blameless as to have a defence in criminal proceedings. Unfortunately, this is the position which may have resulted from the liberal judgment in A-G’s Reference, since the same compromised standard applies in civil as in criminal proceeding^.^^

2 It should be permissible to consider the possible wider effects of a crime which is sought to be prevented In A-G’s Reference Lord Diplock indicated that when balancing the risk of death to the terrorist suspect with the risk that he may eventually participate in a terrorist atrocity, one should consider the possible effects of such an atrocity, such as:

‘the effect of a success by members of the Provisional IRA in encouraging the continuance of the armed insurrection and all the misery and destruction of life and property that terrorist activity in Northern Ireland has entailed.’7h

It is true that to consider the possible effects of certain criminal activities involves some speculation; but, on the other hand, common sense suggests that if a judge has to measure the risks of a certain crime being committed, then he must also measure how harmful the anticipated crime would have been. Certain crimes may be more damaging in some areas than others. To refer back to an example already given,77 a bomb attack upon an unmanned police station would be much more harmful in an area where there is a recognised terrorist problem, and where every such attack might encourage or coerce other local people to the cause of terrorism, than it would be in a relatively quiet area on the mainland.

73. McGuigan v Ministry of Defence [ 19821 19 NIJB at 13- 14. 74. Below, nn 99- 1 13 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 [ 19771 AC 105 at 138. 77. See above n 63 and associated text.


It is respectfully submitted that Lord Diplock’s dicta on this point in A-G’s Reference were correct, and it is noteworthy that the European Commission of Human Rights has also suggested that it is permissible to consider the social context in which a crime was believed to have been attempted.78

3 The imminence of an anticipated crime should be relevant

In A-G’s Reference Lord Diplock said that he would deal with the case on the basis that the defendant had believed the victim to be a member of the IRA ‘who, if he got away, was likely sooner or later to participate in acts of violence’,’’ and his judgment has been interpreted to mean that the fact that an anticipated crime is not ‘imminent’ does not preclude a soldier from using firearms to prevent itxo - although it may mean that there are feasible alternatives which render the use of firearms unnecessary. The dicta have rightly been criticised.8’ But, as became evident earlier in the discussion of the theft of the surveillance vehicle,82 to say that no crime can be prevented until it is ‘imminent’ would be to go too far. Although no one’s life was in imminent danger, at the same time one could not dismiss the risk that a member of the surveillance team or an informer would be attacked as a consequence of the theft as being ‘remote’; and no reasonable amount of forward planning could have saved the lives of all those people whom might conceivably have been endangered. It is submitted then that a soldier or policeman may shoot to prevent non-imminent crime(s), but it should be clear that the less imminent the anticipated crime(s) are, the greater the reason should be for believing that they would (eventually) be committed. As an application of the principle, a judge might rule that a soldier who shoots at a fleeing member of a paramilitary organisation, with no belief as to any specific activity which the suspect might participate in, uses excessive force, because the risk that the deceased would have (eventually) participated in a terrorist atrocity would have been too remote to justify the use of firearms.x3

4 Limitations upon the use of firearms in order to effect an arrest Thus far, the discussion has revolved around the defence of crime prevention; but s 3 of the Criminal Law Act 1967 also authorises the use of ‘reasonable force’ in order to arrest suspected offenders. In principle, the defences are different. The defence of crime prevention justifies one who acts to prevent a crime, and all the adverse social consequences which might have resulted from it. One effects an arrest after an offence is believed to have been committed, with the

78. Stewart v United Kingdom [ 19841 7 ECHR 453. 79. A-G’s Reference [1977] AC 105 at 135. 80. Lynch v Ministry of Defence [ 19831 NI 216. 81. Above n 20. Also see A Jennings ‘Shoot to Kill: The Final Courts of Justice’ in A Jennings (ed) Justice Under Fire (London: Pluto, 1988) pp 109-1 10, 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.

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purpose of detaining the suspect in order to be able to bring aprosecution against him. It should follow that, if a soldier is to lawfully shoot an unarmed terrorist so that he may no longer be at liberty to ‘resume his dealing in death and destructi~n’,~~ then only the doctrine of crime prevention can possibly supply the requisite just i f icat i~n.~~ If a terrorist is incapacitated subsequent to being arrested, it should be because he has since been punished by a court for his previous offence. It is only on account of a man’sprevious conduct, and not his possible future conduct, that the use of force in order to effect an arrest can be effective in keeping a dangerous criminal out of circulation.

However, it has proved to be very rare for a soldier in Northern Ireland to base his defence upon the liberty to effect an arrest, without even pleading the justification of crime prevention in the alternative. The leading example is R v MucNuughton,86 where a soldier, in charge of an eight-man foot patrol, arrested a man whom he believed to have been implicated in an explosion, which caused some military casualties. The suspect made a sudden break from the custody of the patrol, and was shot. Arguably, the offence of which he was suspected was so serious that it may have been justifiable to expose him even to the risk of death in order to be able to prosecute him; but Lowry LCJ did not discuss this issue. Rather, he pointed out that MacNaughton must have anticipated ‘that if Walsh escaped he would undertake terrorist acts’.87 Even worse, Lowry LCJ assumed (though he did not decide) that MacNaughton ‘actually intended to kill his prisoner’.8X But, logically, no would-be arrestor can shoot to kill because one cannot detain, question, prosecute or punish a corpse.89 In these two ways, Lowry LCJ analysed the case in terms of crime prevention; indeed, if one is minded to defend the acquittal, then the case is best rationalised as such.

It is submitted that if another case of shooting in order to effect an arrest comes before the courts, a judge should be careful to balance the risk of death to the suspect with the public interest in the possible prosecution and punishment of the suspect, and to instruct the jury to reject the defence if they find that the defendant intended to kill. Naturally, the more rounds that a soldier fires, the more irresistible will be the inference that he actually intended to kill. thus negating any defence of arrest. In practice, a soldier or policeman could probably only credibly claim to have used a firearm in order to arrest a suspect when he has fired just one shot.

5 The enhanced status of the written instructions

It is worth pointing out that the status of the instructions issued to policemen and soldiers should be greater, if it were for the judge to determine whether or not ‘reasonable force’ had been used in any case. This is because those who are responsible for drafting the documents would have more authoritative guidance upon the law from the courts. Although a judge should not venture himself to

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. [ 19751 NI 203. 87. Ibid at 209. 88. Ibid at 208. 89. See Professor Sir John Smith above n 20 at 118.


lay down general guidelines upon the use of firearms,go provided that he follows the principles articulated a b ~ v e , ~ ’ and articulates which facts in the case have most influenced his judgment in applying those principles, then his judgment should enable other lawyers to anticipate the legal position in regard to a variety of related scenarios which may confront the public servant in the execution of his duties. Indeed, it seems to have been the quest for such guidance which caused the Attorney General for Northern Ireland to take the acquittal of Corporal Jones to the House of Lords. In argument, he said that:

‘The guidance would be of great value even if the House of Lords did no more than pronounce on the question whether if a person is believed to be a member of the IRA is called upon to halt and begins to run away and is then shot at a distance which makes it likely that he will be killed, the shooting can be justifiable. Such a pronouncement would not merely embrace the present facts but would also have a bearing on the case of a driver ignoring a road block or check point and the question whether, if he is shot and killed, that is justifiable homicide. There might be a distinction between a case in which the soldier shooting believed no more than that the driver was a member of the IRA and the case where he believed that there were arms in the car.’92

If the House of Lords had given the pronouncement requested -that a soldier must believe more than that a fleeing man is a member of a proscribed organisation in order to justify shooting him - then not only might the subsequent ‘checkpoint’ casesg3 have been decided differently, but quite possibly the shootings would not have occurred in the first place. The drafters of the ‘yellow card’, on perusing the House of Lords judgment, would have anticipated that a car could not be halted for no other reasons than that the driver seemed determined not to stop and that the soldier thought that he might have been a terrorist, and they would have expressly prohibited shooting in such circumstances. In the event quite the reverse seemed to happen. After A-G’s Reference, a provision in the 1972 ‘yellow card’, which had urged discretion at checkpoint^,^^ was excluded in the revised version in 1980.95 In fact, the new version was altogether much shorter in and one cannot but speculate whether, after A-G’s Reference, the lawyers in the Ministry of Defence no longer felt confident to advise soldiers on how to approach various paradigmatic scenarios.

90. See Hutton J in R v Hegarty [ 19861 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 [ 19771 AC 105 at 1 1 1. 93. See above n 24. 94. Paragraph 20 of the 1972 version of the ‘yellow card’ had advised the soldier that: ‘At aroad blockkheck, you will NOT fire on a vehicle simply because it refused to stop. If a vehicle does not stop at a road blockkheck, 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.

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Whilst I do not propose that the written instructions issued to either soldiers or policemen be given legal force, their provisions might be relevant in court as persuasive evidence upon recognised military, or police, practice. For example, the prohibition against firing warning shots (on account of the dangers presented by the undirected bullet9’) in the ‘yellow card’ might persuade a judge to rule that firing a warning shot is not a feasible alternative to shooting at the trunk of a terrorist suspect. For, whilst the judge needs to hear no outside opinions about the objectives which might justify a soldier in opening fire, he should be prepared to hear expert evidence as to the feasibility of alternatives to the use of firearms - although the final decision as to whether or not a soldier or policeman should have tried a lesser degree of force should nonetheless be hisy8

If the other reform which I advocate in this article were to be implemented, then all written instructions would be relevant in court for another purpose - as evidence supporting a separate defence that the public servant reasonably believed that it was lawful to shoot. I now turn to this proposed reform.

PROPOSED EXCUSE FOR THE PUBLIC SERVANT: REASONABLE BELIEF THAT HE ACTED JUSTIFIABLY

Thus far, I have advocated that a soldier or policeman’s plea to have used ‘reasonable force’ in the prevention of crime or in effecting arrests should be judged as a question of law, applying a set of principles to the facts of the case. These principles should exclude the range of mitigating factors, such as whether the defendant reacted on ‘auto-pilot’ in a state of panic, or whether he erroneously believed that he was using reasonable force. Some of these factors should only ever be relevant in mitigation. If a soldier fires more shots than are necessary, so that he is still shooting a man who has already been incapacitated, there should be no excuse for his failure to exercise proper restraint.”

However, it is submitted that there should be a complete excuse available in criminal trials for the soldier or policeman who had reasonable grounds for believing that he used ‘reasonable force’, as was proposed by Julian Brazier MP in the House of Commons.Ioo It is hard to see what principle of justice requires the punishment of a soldier or policeman who acted in good faith and whose

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”?’ [ 19901 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 [ 19381 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 firearnis to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects’: McCunn v U K [ 19961 2 1 EHHR 97 (para 2 12). 100. See above n 43 and associated text.


use of force is only judged to be excessive in retrospect by a judge who adopts the strict justificatory standard advocated above - although the victim should be entitled to compensation. A public servant may be misled by his training, or by his written instructions. One clause of the ‘yellow card’ was thought to have had the potential for misunderstanding in Clegg,l0l and one could probably find some deficiencies in any set of instructions. There is, for example, nothing in the last published version of the ‘yellow card’ which warns the soldier that he cannot shoot with the intention to kill in order to effect an arrest,’”2 and that he should try to minimise the risk of death to an arrestee. Another reason for allowing the excuse might be to meet the concern (if it is proven to exist) among some public servants that the law does not guarantee that certain uses of firearms are lawful,Io3 and that they might be criminally liable if the judge finds that the peculiar circumstances of one of their cases did not warrant the use of firearms. The defence would not even be anomalous in the context of judging the actions of public servants. Members of staff in mental hospitals, for instance, enjoy a defence where they have ‘purported to act in accordance’ with the Mental Health Act 1983, provided that they have not acted in ‘bad faith or without reasonable care’ .Io4

There should be two elements in the proposed excuse. First, the soldier or policeman must have believed at the time when he fired his shot that his use of force was lawful. In this context, the word ‘belief should be interpreted widely so as to include the soldier who acts upon the assumption that what he does is lawful;’05 he need not have consciously balanced the competing risks in the way that the judge should do. Unless the prosecution adduce evidence that a public servant had some other motive for wanting to shoot his victim, or had his own ideas as to the proper use of firearms in law enforcement, then a jury should readily find that he would only have used his firearm if he believed that it was lawful for him to do so. But whether his belief was a reasonable one should be a question of evaluative fact for the jury to decide. The most important piece of evidence will be the contents of the written instructions which have been issued to the officer on trial. If there are provisions which, in the jury’s view, might easily be understood to justify the defendant’s use of force, then they would have a sound basis on which to conclude that the soldier or policeman had reasonable grounds for his mistake. Thus, whilst the instructions would not have legal force (in so far as that compliance with its terms would not necessarily constitute ‘reasonable force’) they could be highly relevant in absolving him from criminal liability. The jury might also consider the defendant’s other relevant training; and in deciding whether the public servant had reasonable grounds for believing that he was using ‘reasonable force’, especially in a case where the balancing of risks is a particularly intricate task, they should be permitted to consider the ‘brief

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 o f law: M Gunn ‘Personal Searches of Psychiatric Patients’ [ 19921 CLR 767 at 770-771. 105. On the various different meanings of the word ‘belief‘, see E Griew ‘Consistency, Communication and Codification: Reflections on Two Mens Rea Words’ in P Glazebrook (ed) Reshaping the Criminal Law (London: Stevens, 1978) p 69ff.

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second or two’ which he may have had for reflection. The judge, however, might withdraw the defence from the jury if there is nothing in the officer’s training or instructions that could possibly suggest that the use of his firearm, in the circumstances of the case, was lawful, on the ground that the accused has not raised a triable issue of the excuse.

Objections to the proposed excuse The Home Office, however, gave no more serious consideration to the excuse proposed by Mr Brazier MP than they did to the proposal that the instructions issued to soldiers and policemen should be given legal force. There is a hintiM that the excuse might have been more carefully reviewed if it had been an issue in R v Clegg (it will be recalled that Clegg had testified that he knew of no justification for firing upon the car after it had passed the checkpointlo’). As it was, two objections were briefly mooted. It was suggested that the excuse would constitute a covert doctrine of superior orders,Ios and the Review proudly recited that ‘it is fundamental to our legal system that the Executive has no power to authorise a breach of the law’.’09 But in no way would our legal system be so undermined. The defence would not be dependent upon any ‘order’ having been given, at least not in the normal sense, and the public servant would continue to use his firearm on his own responsibility. If he does use excessive force upon the explicit instruction of a superior officer, he will only be exculpated if the jury find that he had good reason to believe that the act which he had been ordered to do was a lawful one.’ ’’ The emphasis upon the point that a reasonable mistake of law should be required has apparently persuaded the judiciary of a previous era to allow such a defence, notwithstanding the similarities to a doctrine of superior orders.”’ Secondly, and rather mysteriously, the Review say (quite rightly) that:

‘attempts would be made to adduce supplementary guidance in court in the event of a dispute over the ingredients of an offence, e.g, to help the court in deciding whether it accepted the defendant’s “honest belief’ that he or she was acting in accordance with instructions.” I 2

106. See Home Office Review, para 78. 107. [I9951 1 All ER 334 at 338. 108. Home Office Review, para 76. 109. Yip Chiu Cheung v R [ 19951 1 AC 1 1 1. 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 G Williams Criminal Law: The General Part (London: Stevens, 1961) pp 296- 298, 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.


The Review appears to find something objectionable in the thought that a court should have to grapple with such highly relevant evidence, but does not articulate what problems the admission of such evidence might cause.

Possibly, the Review is hinting more broadly at other practical problems which might arise from recognising a second line of defence for the soldier or policeman. However, in most cases, the two defences would be mutually exclusive. The defendant would ask the judge to rule in advance as to whether, on the facts as he alleges them to be, he used ‘reasonable force’. If the judge does so rule, D will try to convince the jury of the facts as he alleges them to be, and nothing may be heard of the excuse. Otherwise, D will rely only upon the excuse before the jury. But, even if the judge does not give a ruling before the trial begins, his ruling upon the application of s 3 in his summation to the jury should ensure that the latter need only to find the primary facts of the case in order to ‘decide’ whether or not ‘reasonable force’ has been used. Their only task of evaluation would lie in resolving the excuse. Provided that the judge is careful to instruct the jury as to which evidence is relevant to which plea, no practical problems are evident.

The other objection which might be raised against developing a second defence for the public servant is that it might become unduly difficult - even more so than at present - to convict a soldier or policeman in criminal proceedings. This is not the intention behind the proposal, and neither should it be the effect. At present, under the approach outlined in A-G’s Reference, ajury may consider the fact that a soldier believed that he was acting lawfully as a factor which bears in some uncertain degree upon the reasonableness of his conduct. Under the present proposals, the jury should wholly disregard any unreasonable mistake of law; but, if satisfied that the defendant did have reasonable grounds for believing that what he did was lawful, they would have no discretion but to acquit. It does not seem appropriate to say that the availability of two defences would thus tilt the law in favour of the public servant; nor against him. Rather, the measure would eliminate the prospects both of a perverse acquittal, and of an unduly harsh conviction, of the public servant.

It is also worth noting that the excuse should be less and less successful as time goes by. Eventually, as the judges rule upon the justifiable uses of firearms, the drafting of the instructions will improve so that reasonable mistakes about their application will become rarer. Moreover, unlike the justificatory defence under s 3(1), one officer’s excuse will not create a precedent on the same facts for another officer to rely upon in a future trial - quite the opposite.”3 Also, although a public servant may be acquitted in criminal proceedings by virtue of the excuse, if a judge rules that he has used excessive force, he may yet be subject to disciplinary proceedings as well as a civil suit.

113. G Fletcher observes in Rethinking Criminal Law (Boston: Little, Brown, 1978) p 81 1 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’.

508 Legal Studies

CONCLUSION

In this article, I have criticised the Home Office’s Review for not properly considering the need for a refom of the law of justifiable uses of force as it applies to soldiers and policemen, and for consequently failing to give the options for reform their due attention. Under the approach articulated in A-G ’s Reference, the reasonableness of a public servant’s use of force is determined as a question of fact, and takes into account the pressures experienced by the soldier, and his belief that he was acting lawfully. By combining elements of justification and excuse into the one defence, the law tries to satisfy two jealously competing interests - the right of the suspect not to be the subject of excessive force, and the right of the individual officer not to be unjustly punished. In practice, the first interest has been neglected,liJ whilst the perspective of the accused hiinself has threatened to assume an exaggerated importance. I i 5 I have proposed that the law should recognise mwo mutually exclusive defences which would address these interests separately. It should be for a judge to decide whether a public servant has used ‘reasonable force’ for one of the purposes contained in s 3 of the Criminal Law Act 1967, and he should apply a strict justificatory set of principles to the facts of the case before him. The second defence would be a new excuse for the public servant who reasonably believed that he had used ‘reasonable force’, and would be available in criminal trials so as to prevent unjust convictions but should not be a defence in civil proceedings, where the right of the civilian to be free from excessive force should be the paramount consideration. It is noteworthy that the Home Office Review did not consider reforming the approach in A-G ‘s Reference to the determination of ‘reasonable force’ in conjunction with enacting an excuse, although considering the quality of their reasoning behind rejecting the two proposals separately,Il6 one somehow imagines that some objections would have been found.

These reforms, however, could have been made simultaneously by a relatively modest amendment to s 3 of the Criminal Law Act 1967. Subsection (2) should no longer be needed, and two new clauses could be added so that the section (an equivalent to which should apply in Northern Ireland) would provide that:

‘Use of force in making arrest, etc. 3.( 1) 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 of persons unlawfully at large. ( 2 ) Where in any civil or criminal proceedings it falls to be determined whether the degree of force used by a soldier, policeman, or other public servant acting in the execution of his duties, was “reasonable”, the judge shall determine the issue. (3) A soldier, or policeman, or other public servant, who, purporting to act in the execution of his duties, uses force under the reasonable belief that his action is justified under subsection (1) above shall have a defence in criminal proceedings. ’

114. See above nn 20-25 and associated text. 115. See above nn 30-3 I and associated text. 116. See above nn 45-62, nn 106- 1 1 1 and associated texts for criticisms of the objections mounted by the Home Office Review.


However, it does appear that legislation on the subject of the use of force by the public servant will be unforthcoming in the near future. The Review was prompted by the conviction of Private Clegg, and it may be some considerable time before the law concerning the use of lethal force becomes a matter of public debate again. Even if it does, as the Home Office Review has shown, there will need to be a genuine political commitment to reform from the government of the day.

However, it is possible that the courts themselves may take action. When the European Convention of Human Rights becomes enshrined in English law, then the courts should be required to apply ‘a stricter and more compelling test of necessity . . . from that normally applicable when determining whether State action is “necessary in a democratic society”’.“’ This obligation may persuade them to adapt Lord Diplock’s approach, which allows for no difference in approach arising from the distinction between ordinary citizens and public servants in law enforcement.lIs If my observations upon our present law are correct, it is hard indeed to see how our jurisprudence can be compatible with art 2,”’ and the best way to ensure compatibility would be to treat the evaluation of ‘reasonable force’ as a question of law. The new excuse should have to be developed by judicial fiat, but the development ofjust defences is now regarded as an appropriate judicial function.120 Further, the defence would apply to all charges of offences against the person, and not just to murder, and so the courts need not worry, as did the House of Lords in CleggI2’ (when considering a new partial excuse of excessive defence) that the development would in any way undermine the mandatory life sentence for murder. Neither should it be feared that an excuse developed by the courts might conflict with the intentions of Parliament in 1967. As Professor Smith has noted:

‘the law stated in section 3 is primarily civil law. It states when force may be used - when its use is lawful, so that it is neither a tort nor a crime. It says nothing at all about defences to crime.’ 12*

It is to be hoped that, once a more justificatory standard of ‘reasonable force’ has been applied by the courts to cases involving public servants, then the reasons in favour of developing a new excuse will encourage the judiciary to be creative.

117. McCann v U K [1996] 21 EHHR 97. 118. See above n 29-36 and associated text. 119. In McCunn v UK [1996] 21 EHHR 97 (para 155) the European Court of Human Rights said that the difference between the UK standard ofjustification 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 [ 19941 3 WLR 519 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) CLR418-419. 122. Ibid at 419.

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