Criminal Liability in Regulatory Contexts Responses - Law ...

1.1113 Should the defendant fail to argue due diligence, the company is likely to be
convicted, suffering loss of reputation and possible brand damage which may
also be out of proportion to the fine which Parliament has set as the appropriate
penalty. In addition to the argument referred to above that the perception of the
seriousness of the offence is greater when there is a defence which has not been
run than if there were no defence at all, there is a point of principle: if the
defendant makes a commercial decision not to run an expensive due diligence
defence, the use of criminal proceedings becomes a form of fund raising for the
benefit of the consolidated fund.
1.1114 The re-formulation of the defence: the Food Law Group would support the
proposal to omit the word “all” where it appears in the current defence. This is
because its effect in the current formulation is uncertain. There is a difference of
approach between prosecutors and defendants as to its significance in every
case. Prosecutors draw attention to the inclusion of the word “all”. On the other
hand, it has been established, most recently in Enfield v Argos Ltd [2008] EWHC
2597 27 that this defence does not mean that the defence fails merely because the
prosecutor can identify another precaution that could have been taken. Thus,
although there has been a determination as to what the word “all” does not
achieve, there is no clear guidance as to what it does. This is unsatisfactory.
1.1115 The standard of the test is also difficult to identify: Furthermore, in its current form
the test is in reality one of hindsight. It raises questions framed in the context of
the offence about how many people should have been employed, whether
external consultants should have been used, whether the staff recruited were
sufficiently clever or were of sufficiently robust temperament or sufficiently
vigilant. It examines the culture of the business and the decisions made as to
frequency of testing, equipment replacing, renovation of plant and premises. The
question in every case is whether the defendant has done enough to exclude
himself from the criminal band. It is always set against a business and capitalistic
background in which balances need to be found between compliance, training,
investment and foresight. It is not clear to what extent the court ought to put itself
in the position of the business and come to a decision afresh, or whether it should
consider that decisions rationally taken are within the reasonable range of
responses and therefore that the defence should be proven. Even in the case of
ASDA v. Birmingham City Council, the court, when considering an issue that the
company had addressed, appeared to consider that the court could have come to
a different view of what was appropriate from that of the company. On the
assumption that this approach is correct, it involves the engagement of the court
in, sometimes, technical matters of which it may have no prior experience or skills
and differs from the more limited approach that the court would take when
considering a decision made by a public body in judicial review proceedings.
There is a question whether that is the appropriate level of intervention.
Reformulation of the test to exclude the word “all” may do much to address this
difficulty.
1.1116 Delegation: The Group agrees with the Law Commission proposal and would
suggest that the same approach be applied to the “act or default” offence.
27 Also see Smith v. T&S Stores (1994) 39 LGR 98
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