Criminal Liability in Regulatory Contexts Responses - Law ...

1.1094 This is an appropriate addition when the offence is concerned with the provision
of information, in many cases provided to the regulated body by another person.
As such, context specific defences are often required, and a general provision will
be difficult to draft which encompasses all circumstances appropriately.
1.1095 Further, some offences (e.g. offences under Regulation 3 of the Consumer
Protection from Unfair Trading Regulations 2008 (failing apply professional
diligence) do not have a statutory defence since the fault requirement is
addressed in the offence (to act in accordance with ‘honest market practices’). As
such care needed to ensure the applicability of a general defence provision is
clear to regulators and courts.
1.1096 Commonly, businesses fail to respond to requests for information from regulatory
agencies investigating a breach of legislation. Trading Standards powers include
provisions requiring disclosure and seizure of information required as evidence of
an offence, but do not extend to information supporting any defences. As such,
this general proposal should be tempered by a requirement on businesses to
provide information on defences to regulators so that an appropriate assessment
of any defences can be made before proceedings are commenced
1.1097 We agree that in the pursuit of natural justice it is appropriate for a defendant to
be afforded the opportunity of establishing a statutory due diligence defence for
offences which do not require proof of fault. We are of the opinion where
regulatory legislation does not contain such defences consideration should be
given to how best to afford the defendant such a defence. We agree that the
burden of proof should rest with the defendant. We suggest that the appropriate
process would be for the defence to be raised by the defendant for the courts
consideration, rather than for the court to be responsible for deciding when to
consider such defences.
1.1098 To minimise confusion or doubt it would seem appropriate to specify the
legislation to which the defence is afforded. This may be achieved by way of an
enabling act and subordinate legislation. Consultation on the proposed
application of the defence to specified legislation should be undertaken prior to
implementation.
The Faculty of Advocates
1.1099 See under proposal 15.
Central England Trading Standards Authorities (CETSA) and West Midlands
Region County Chief Environmental Health Officers Group
1.1100 In general, regulatory offences do have some form of due diligence defence, and
they are broadly similar. In general local authorities would not prosecute if,
evidentially, a defence would probably be established.
207