Recklessness After Reid
| Published date | 01 March 1993 |
| Date | 01 March 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb00956.x |
The
Modern Law Review
[Vol.
56
CASES
Recklessness
After
Reid
L.
H.
Leigh
*
Introduction
The decision of the House of Lords in
Reid,
though directed towards the fault state
required for the offence, now supplanted, of causing death by reckless driving will,
as a result of wide
dicta
in it, require both the courts and the law reformers to reassess
the meaning of recklessness elsewhere in the criminal law.’ Attention will now
have to shift from the issue whether recklessness can or should be expressed in
terms of failing to advert to the difficult question of which offences should be capable
of commission by blameworthy inadvertence. That is, however, only one of the
issues which arise for consideration or reconsideration.
Like
Lawrence,2 Reid
on the facts was a simple case. The accused, in heavy
urban traffic, sought to pass another car on that car’s nearside in a location where
the nearside lane narrowed because of the presence of a taxi hut. As the accused
accelerated, the nearside
of
his car struck the hut and was projected astride the traffic.
This impact caused fatal injuries to the accused’s passenger. The trial judge directed
the jury in terms of Lord Diplock’s suggested direction in
Lawrence.
That direction
was challenged on two grounds; first, that it was ambiguous concerning whether
‘such risk’ and ‘some risk’ referred to different degrees of risk, or different risks
and, second, whether recklessness ought to be restricted in meaning in all cases
to require that the accused actually perceived the relevant risk when he acted or
omitted to act.
The points of law certified for the House of Lords were narrow; first, whether
in a case of reckless driving the jury should be directed in terms of the
ipsissima
verba
of Lord Diplock’s suggested direction in
Lawrence,
as the Court of Appeal
had stated in
Madigan3
and, if the answer to that question were ‘no,’ in what terms
the jury should be instructed. Their Lordships concurred in returning a negative
answer to the first question and declined to answer the second.
Advertent and Inadvertent Recklessness
The first question essentially raised two distinct points; first, whether recklessness
should be confined to cases where the actor actually perceived risk and, second,
if not, whether Lord Diplock’s formula could be taken as more than indicative;
that is, a starting point for a direction rather than an invariable formula for all cases.
*Professor of Criminal Law, London School
of
Economics.
I
should like to thank my colleague Dr Lucia Zedner, and Mr R.R. Stuart of Hertford College, Oxford,
for their helpful comments on an earlier draft of this paper. They are not responsible for the conclusions
expressed in it.
I
[I9921
1
WLR793.
2 [1982] AC 510.
3
(1982)
75
Cr App R 145.
@
The Modern Law Review Limited 1993 (MLR 56:2, March). Published by Blackwell
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