Criminal Liability in Regulatory Contexts Responses - Law ...

PROPOSAL 14
Criminal Sub-Committee of the Council of HM Circuit Judges
1.1048 General defence of due diligence where strict liability might otherwise apply
seems appropriate and desirable. Support 14 and 15, test should be exercise of
due diligence in all the circumstances. (Questions 1 and 2: no).
Food Standards Agency
1.1049 Already for food and feed legislation. Great deal of case law. Fully support utility
of defence. Would wish to retain standard form of words for defence for food and
feed sectors. In the light of R v Lambert (2001), defence in feed and food law
creates evidential burden.
Chris Williamson MP
1.1050 Due diligence should be exercised strictly – there should be a higher burden of
proof for due diligence to ensure that all possible steps were taken to avoid the
criminal actions that the individual/company undertook. We must also ensure that
the concept of due diligence is applied universally.
Kiron Reid, Liverpool Law School
1.1051 Agree in principle. This should be clearly put in statute.
HSE
1.1052 See proposal 15.
The Law Society
1.1053 See proposal 15.
Institute of Chartered Accountants of England and Wales (ICAEW)
1.1054 The circumstance and terms of the underlying offences will be very different in
different circumstances, but we would strongly prefer the due diligence defence
to be worded in the same way for all corporate and other business offences.
Businesses should not be asked to apply different types or principles of
governance or control in relation to different criminal offences, though the degree
and standards to which those controls should be applied will vary according to
the likelihood of occurrence and the harm or seriousness of the behaviour
concerned. That would result in a compliance nightmare, with a watching brief
needing to be kept over possible changes to the large and increasing number of
potential business crimes, to ensure that the differing terms of all of them had
been complied with.
Financial Services and Markets Legislation City Liaison Group
1.1055 We support this proposal and would go further to suggest that there should be a
due diligence defence that applies in all cases except where Parliament deems
otherwise. Leaving it to the courts to determine whether there should be a due
diligence defence by applying the test set out in paragraph 6.19 of the
Consultation Paper would create too much uncertainty.
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