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South African Journal on Human Rights Volume 3, 1987 - Issue 2
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Original Articles

Licence to Kill Part II: A Comparative Survey of the Law in the United Kingdom, United States of America and South Africa

Nicholas HaysomCentre for Applied Legal StudiesUniversity of the Witwatersrand, Johannesburg. Attorney of the Supreme Court of South Africa.
, BA(Hons)(Natal) LLB(Cape Town) (Senior Research Officer)
Pages 202-222 | Published online: 02 Feb 2017

  • (1987) 3 SAJHR 3–27.
  • M Burchell and P M A Hunt South African Criminal Law and Procedure 1: General Principles Criminal Law 2 ed (1983) 322–35.
  • Section 49(2) of the Criminal Procedure Act 51 of 1977.
  • Sections 48 and 49 of the Internal Security Act 74 of 1982.
  • Henry Lesansky Stop - Or I'll Shoot: The Use of Deadly Force by Law Enforcement Officials (1982) 23–37.
  • Tennessee v Garner 105 S Ct 1694 (1985).
  • L W Sherman ‘Execution Without Trial: Police Homicide and the Construction’ (1980) 33 Vanderbilt LR cited in Lesansky op cit note 5 at 8.
  • Ibid.
  • Gerlad Robin ‘Justifiable Homicides by Police Officers’ (1963) 54 Journal of Criminal Law, Criminology, and Police Science 225–38 cited in Lesansky op cit at 9.
  • Lesansky op cit at 14–17.
  • Arthur Kobler ‘Police Homicide in a Democracy‘(1975) 31 Journal of Social Issues 163–84 cited in Lesansky at 11.
  • Lesansky op cit at 12.
  • L W Sherman ‘What do we know about Homicides by Police Officers?’ in Police Use of Deadly Force: What Police and the Community Can Do About It (1978) cited in Lesansky at 12.
  • At 12.
  • The Star 21 October 1986.
  • Barbara Rhine The Law of Dissent and Riots (1968) 270 cited in Lesansky op cit at 18.
  • Lesansky op cit at 19.
  • Ibid.
  • The common-law position is surveyed in Tennessee v Garner note 6. See also Lesansky op cit at 23–5.
  • See S C Day ‘Shooting the Fleeing Felon: State of the Law’ (1978) 14 Criminal Law Bulletin 301–3 cited in Lesansky op cit at 26.
  • Mattis v Schnarr 547 F 2d 1007 (1976).
  • Wiley v Memphis Police Department 548 F 2d 1247 (1976).
  • Tennessee v Garner note 6.
  • Ibid.
  • Rhine op cit note 16 at 272 cited in Lesansky op cit at 21.
  • G L Kirkham & J D White A Handbook for Police Civil Liability (1980) 59 cited in Lesansky op cit at 21.
  • Lesansky op cit note 5 at 22.
  • Shoot to Kill? International Lawyers' Inquiry into the Lethal Use of Firearms by the Security Forces in Northern Ireland (chairman: Kadar Asmal) (1985) 14–24 (hereafter referred to as Shoot to Kill?): They Shoot Children: The Use of Rubber and Plastic Bullets in the North of Ireland (1972) 30; Amnesty International Report 1987 Justifiable Homicide: A Critical Comment on the Use of Lethal Weapons by the Security Forces submitted to the International Lawyers' Inquiry into the Lethal Use of Firearms by the Security Forces in Northern Ireland by the Haldane Society of Socialist Lawyers (1984).
  • Shoot to Kill? note 28 at 119–23.
  • See note 28. In particular, in 1986 Amnesty International joined human rights organizations which expressed concern over the use of lethal weapons in Northern Ireland.
  • Lord Justice Gibson cited in Shoot to Kill? note 28 at 92 and Irish Times 6 June 1984.
  • The justification that a soldier or policeman was acting on orders, as in South Africa and the USA, has not been raised directly in the cases which have come before the courts and is not dealt with explicitly in this or in the previous sections, but see the comments on the Bohan case below. See too R J Spjut ‘The Official Use of Deadly Force by Security Forces Against Suspected Terrorists. Some Lessons from Northern Ireland’ 1986 Public Law 38 at 39.
  • Section 3(1) of the Criminal Law Act (Northern Ireland) 1967.
  • See R v Julienne (1969) 2 All ER 856; Spjut op cit note 32 at 40; S C Greer Submission to the International Lawyers' Inquiry into the Use of Firearms by the Security Forces in Northern Ireland 4; R v Foxford (1974–5) N1 181.
  • R v Bohan & Temperley (1979) 5 NIJB; R v Robinson Belfast Crown Court 3 April 1984, unreported.
  • Spjut op cit note 32 at 41.
  • See Greer op cit note 34 at 11–12 and the Haldane Society Report note 28 at 1. See, also Ninth Report of the Standing A Advisory Commission of Human Rights Annual Report for 1982–83 (1984) 41. See, generally. Shoot to Kill? note 28 at 71–3.
  • See Ninth Report of the Standing Advisory Commission on Human Rights Annual Report for 1982–83 note 37 at 38, though the courts have not been as demanding as this formulation.
  • See the commentary on s 3 of the Criminal Law Act of 1967 in Ninth Report of the Standing Advisory Commission on Human Rights Annual Report 1982–83 at 21–3, 36–41 and Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488(A).
  • Spjut op cit note 32 at 39–43.
  • Palmer v Queen [1971] AC 814 at 831 in Spjut op cit note 32 at 42.
  • Seventh Report of the Criminal Law Revision Commission Cmnd 2659 (1965) para 23; Fourteenth Report of the Criminal Law Revision Commission Cmnd 7844 (1979) para 283.
  • Spjut op cit note 32 at 41–2.
  • The ‘Diplock courts’ were established following the recommendations of the Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland (Diplock Report) Cmnd 5185 (1972), which found that jury members may be subjected to too much pressure and accordingly recommended the abolition of trial by jury in security matters in Northern Ireland.
  • See Shoot to Kill? note 28 at 114–24.
  • See Spjut op cit note 32 at 57.
  • See Shoot to Kill? note 28 at 73–9.
  • See Shoot to Kill? note 28 at 89–90; The Guardian 19 October 1983, 20 October 1983; see also the Haldane Society Report note 28 at 5–7; House of Commons Debates 17 January 1983.
  • Haldane Society Report note 28 at 8.
  • See Spjut op cit note 32 at 55–7.
  • Paragraph 3 of Army Code 70771 Instructions by the Director of Operations for Opening Fire in Northern Ireland (1972) and para 6 of Instructions for Opening Fire in Northern Ireland) 1980) (the ‘yellow card’).
  • Report of the Tribunal Appointed to Enquire into the Events on Sunday 30 January 1972 which Led to Loss of Life in Connection with the Procession in Londonderry on that Day (Widgery Report) HC 220 (1972) para 93.
  • The 1972 ‘yellow card’ required three warnings.
  • R v McNaughton Belfast Crown Court 5 September 1974 unreported; (1975) 5 NIJB.
  • At 14 of the unreported judgment.
  • R v Jones (1975) NIJB; Attorney-General for Northern Ireland's Reference (No 1 of 1975); [1977] AC 105.
  • At 23 of the unreported judgment.
  • Haldane Society Report note 28 at 6.
  • R v Robinson Belfast Crown Court 3 April 1984, unreported, cited in Shoot to Kill? note 28 at 36–9.
  • New Statesman 15 June 1984 cited in Shoot to Kill? note 28 at 39.
  • R v Montgomery Belfast Crown Court 5 June 1984, unreported. See Shoot to Kill? note 28 at 39–43.
  • Shoot to Kill? note 28 at 41 citing Irish News 5 June 1984.
  • Irish Times 6 June 1984 cited in Shoot to Kill? note 28 at 41.
  • Ibid.
  • R v Jones note 56 at 17–18 of the unreported judgment; R v Mac Naughton note 54 at 7, 15 of the unreported judgment; Spjut op cit note 32 at 48.
  • R v MacNaughton note 54 at 16.
  • R v Jones note 56 at 17–18 of the unreported judgment.
  • Attorney-General for Northern Ireland's Reference (No 1 of 1975) note 56.
  • Attorney-General for Northern Ireland's Reference (No 1 of 1975) (1975) NIJB; judgment of McGonigal LJ at 20.
  • Spjut op cit note 32 at 52. See also Shoot to Kill? note 28 at 85.
  • Farrell v Ministry of Defence [1978] NIJB (CA(NI)); majority judgment of Lord Lowry CJ at 5–6.
  • Minority judgment of McGonigal LJ at 12–14 in Farrell v Ministry of Defence supra.
  • Farrell v Ministry of Defence [1980] 1 All ER 166 (HL).
  • Mrs Farrell, having exhausted her remedies in the United Kingdom, took her case to the European Commission of Human Rights. On 10 December 1982 the Commission declared her complaint in breach of art 2 of the Convention admissible. Farrell v United Kingdom Application 9013/80 5 ELT RR 465 discussed in D Kock Permissible use of Lethal Force in Law Enforcement (May 1984) 16–20.
  • R v Bohan & Temperley Belfast Crown Court 4 July 1979; (1979) 5 NIJB.
  • At 16 of the judgment.
  • For a persuasive criticism of the approach of the House of Lords see D S Greer ‘Legal Control of Military Operations — A Missed Opportunity‘(1980) 31 Northern Ireland LQ cited in Shoot to Kill? note 28 at 80–6.
  • Ninth Report of the Standing Advisory Commission on Human Rights note 38 at 23, 41.
  • Dr Clifford Goldsmith ‘Report on the Effect of Teargas and Rubber Bullets’ in Report on Police Conduct during Township Protests September 1984 (1984) 32–3.
  • At 24.
  • Weekly Mall 6 December 1985; ‘Human Rights Index’ 1985 (2) SAJHR 112–13.
  • Ibid; Sunday Tribune 26 January 1986.
  • See Report of the Commission of Inquiry into the Riots at Soweto and Elsewhere from the 16th of June 1976 to the 28th of February 1977 (Cillié Commission) RP 55/1980.
  • Report on Police Conduct During Township Protests note 79 at 15–18.
  • At 6–10.
  • Rules for Engagement for PVC Baton Removals (Plastic Bullets) in Shoot to Kill? note 28 at 63.
  • Report on Police Conduct During Township Protests note 79 at 33.
  • At 29.
  • They Shoot Children: The Use of Rubber and Plastic Bullets in the North of Ireland note 28 at 9
  • Ibid.
  • At 11.
  • At 14.
  • At 14.
  • At 15.
  • At 15–17.
  • At 23.
  • At 24.
  • Ibid.
  • Jonathan Rosenhead ‘A New Look at “Less Lethal” Weapons’ New Scientist 16 December 1976.
  • They Shoot Children note 28 at 19–23; Shoot to Kill? note 28 at 62.
  • They Shoot Children at 25–9; Shoot to Kill? at 63.
  • They Shoot Children at 30; Shoot to Kill? at 63.
  • Steve Wright ‘Your Unfriendly Neighbourhood Bobby’ The Guardian 16 July 1981.
  • They Shoot Children note 28 at 35.
  • Irish Times 6 August 1981. Mr Whitelaw subsequently retracted his refusal to employ plastic bullets in the United Kingdom. See Shoot to Kill? note 28 at 64n2.
  • Dr Tim Shallice in New Statesman 14 August 1981 cited in They Shoot Children note 28 at 25.
  • See Shoot to Kill? note 28 at 61 and Appendix at 158–61 which summarizes the arguments of the government of the United Kingdom, and that of the International League of Human Rights.
  • Kathleen Stewart v United Kingdom Application 12044/82 12 July 1984 Communique issued by Secretary to the European Commission of Human Rights C(84) 52 12 July 1984.
  • At 2.
  • Article 2 protects the right to life; art 3 prohibits inhuman treatment or punishment; art 14 prohibits discrimination, in this case against Catholic residents of Northern Ireland.
  • Shoot to Kill? note 28 at 64.
  • Report of the Commission Appointed to Inquire Into the Incident which Occurred on 21 March 1985 at Uitenhage (known as the Kannemeyer Commission of Inquiry) RP74/1985 at 108–12.
  • Ibid.
  • Cited in They Shoot Children note 28 at 22.

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