Criminal Liability in Regulatory Contexts Responses - Law ...

1.1087 The addition of a due diligence clause would go a significant way to addressing a
difference between English law and that operating in other EU member states,
whose legal systems effectively provide for their courts to exercise a due
diligence test in interpreting statute. The fact that English law does not regularly
puts manufacturing companies at a competitive disadvantage, effectively ‘goldplating’
implementation in the UK.
The Institute of Employment Rights
1.1088 We welcome the thrust of the proposals 14 and 15. We also agree that the
burden of proof should be placed on the defendant to establish a defense and
that this should take a stricter form, as set out in question 1.
Local Government Regulation (LGR)
1.1089 Although we support this proposal in principle we would question whether such a
defence would be appropriate for all regulatory offences particularly those which
are strict liability. It implies that the Regulatory arena of law is strewn with
offences for which an element of Mens Rea is not required, yet, for which there is
no corresponding statutory defence. It is our view that such offences are few and
far between. For those that do exist, this is because it was Parliament’s intention
that for certain activities there can be no defence in law.
1.1090 We are further concerned that the introduction of such a defence will lead to
confusion within the Court process and inevitably wasted costs. The majority of
regulatory offences that fall within the remit of Trading Standards Services
already encompass a due diligence defence where the burden of proof lies with
the defendant.
1.1091 For example, would such a defence be desirable in matters which relate to safety
of others, animals or the environment e.g. overloaded HGV’s or indeed some
offences under Animal Health legislation where the impact of offending can be
significant either on animal welfare or disease precautions.
1.1092 Correct and appropriate application of the Code for Crown Prosecutors and local
enforcement policies are likely to ensure that prosecutions are not commenced
for a breach of legislation without fault requirement if the business concerned
would be able to make out a due diligence defence. Is there evidence that the
current system does not work? It may not be the purest application of the law, but
the cost of change needs to be balanced against the benefit, which is not clear
here.
1.1093 Paragraph 6.39 of the consultation paper states- “Another example is the offence
of making a false or misleading statement about a prescribed matter in the
course of an estate agency business or a property development business
contrary to section 1 of the Property Misdescriptions Act 1991. There is a defence
under section 2(1) to show that the defendant took all reasonable steps and
exercised all due diligence to avoid committing the offence. However, this
defence is restricted in that it cannot be used where the defendant has relied on
information unless he or she shows that it was reasonable in all the
circumstances for him to rely on it.”
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