Criminal Liability in Regulatory Contexts Responses - Law ...

1.1105 Furthermore, there are a number of problems with the defence, notwithstanding
that the opinion of the Food Law Group has historically been that a due diligence
defence should be retained. 26 Improving the formulation of the offence as
suggested in Proposal 15 (not just if Proposal 14 were to be accepted) might
reduce the rigour of the test for the defence which is considerable (see below).
We strongly support the proposal for reformulation to a standard that requires the
court to consider whether due diligence has been exercised in all the
circumstances but would comment that this would not resolve all the problems to
which the defence currently gives rise. We thought that it may be of assistance to
the Law Commission if we set out our perceptions.
1.1106 Penalising negligence: It is important at the outset to understand how strict
liability offences and due diligence defences dovetail: the combined effect of
these is to penalise negligence or, indeed, may be to penalise conduct which falls
even short of negligence. This appears to contrast with the prevalent approach of
the Law Commission that negligence should not generally be penalised, but be
the subject of civil procedures. The speech of Lord Diplock in Tesco v. Nattrass
on which the proposition that the due diligence defence criminalises negligent
behaviour is at page 199D as follows:
“Due diligence is in law the converse of negligence and negligence
connotes a reprehensible state of mind — a lack of care for the
consequences of his physical acts on the part of the person doing
them. To establish a defence under section 24(1) (b) of the Act, a
principal need only show he personally acted without negligence.”
1.1107 This passage has been cited with approval (based upon a concession by
Counsel) in Bilon v WH Smith [2001] EWHC Admin 469. No other member of the
House of Lords in Tesco v. Nattrass, however, formulated the test by reference to
the common law concept of negligence and it is questionable whether it is right to
do so.
1.1108 The scope of the due diligence test is large: Running a due diligence defence
involves in every case the need for the business to show the court the steps
taken to avoid the occurrence of the offence after the offence has occurred. It is
not clear to what extent the defence is related to causation because it is the
planning and implementation by the business which is important, not whether the
presence, adequacy or absence of the system occasioned the offence. For
example, in a case where a food manufacturer undertook no inspections of its
production methods and a foreign body was found in food, the court might not be
able to apply the defence even if it were proved that the particular foreign body
was an act of sabotage to which inspection procedures would have made no
difference. The defendant would not have taken all reasonable precautions and
exercised all due diligence to avoid the commission of the offence.
26 Abolition of the defence in all food law cases was considered informally by the Food Standards Agency
shortly after its inauguration: the hypothesis was advanced by members of the Agency that the due
diligence defence might not meet the requirements of European law. This was never the subject of a formal
study.
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