Liability for Inadvertence: A Lordly Legacy?
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02024.x |
| Date | 01 July 1995 |
| Published date | 01 July 1995 |
THE
MODERN LAW REVIEW
Volume
58
July
1995
No.
4
Liability for Inadvertence:
A
Lordly Legacy?
L.
H.
Leigh
*
Introduction
In the wake of the House of Lords decision in
Adomako,
the rules governing
criminal liability for inadvertence have become more confused than ever.’ It
might have been thought, and indeed along with others
I
had previously argued,
that inadvertent recklessness, properly understood, covered the whole ground
of
liability for inadvertence
.2
Instead of subsuming liability for inadvertence under
recklessness, the House of Lords has chosen to affirm that gross negligence
remains the mental state for manslaughter, while recklessness, in its connotation as
inadvertence, is the fault state for other crimes and in particular those where the
word ‘reckless’ is explicitly used. Once their Lordships decided to preserve gross
negligence for manslaughter, it was inevitable that the law would be saddled with
two fault terms signifying,
if
not necessarily the same thing, then inadvertence at
any rate. The central question which
this
development poses is whether there are
relevant differences between gross negligence and recklessness and, if
so,
what
these are. The issue is of capital importance because, although
Adomaka
asserts
that gross negligence is the sole mental state in issue where manslaughter is
committed through inadvertence, recklessness remains the mental state for certain
other offences of inadvertence. The decision in
Adomuko
suggests that gross
negligence is more rigid in its terms than recklessness and precludes certain
possibilities for the evaluation of conduct that gross negligence
permit^.^
It thus
carries negative implications for recklessness which need to be explored before
they become uncritically accepted by courts and commentators alike.
This article is devoted to
an
exploration of this central issue. It is not concerned
with advancing a justification for liability for inad~ertence.~ Liability for
*Professor of Criminal Law in the University of London (the London School of Economics and Political
Science).
I
am
grateful to Dr A.T.H. Smith, to Professor I.H. Dennis and
to
Dr Robert Baldwin for their helpful
comments on an earlier draft of
this
article.
1
Adomako
119941
3 WLR 288.
2
‘Recklessness After
Reid’
(1993)
56
MLR 208.
3
This
is certainly
the
view of the Law Commission, Criminal
Law,
Involuntary Manslaughter,
Law
Commission Consultation Paper
No
135 (London:
HMSO,
1994), at paras 3.105-3.108. It was also
the view of the Court of Appeal in the instant case,
sub
rwm
Prenrice
[1993] 3 WAR
927.
4
In
this respect I agree with Lacey,
Zhe
Principles
of
Srute
Punishmenr
(London: Routledge, 1988)
pp
lWff, but not with the notion of hostility to social values as the
hullmurk
of
liability.
@
The
Modem
Law Review
Limited
1995
(MLR
58:4,
July).
Published by Blackwell Publishers,
108 Cowley Road,
Oxford
OX4
1JF and
238
Main
Street,
Cambridge,
MA
02142,
USA.
457
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