Criminal Liability in Regulatory Contexts Responses - Law ...

CBI
1.1117 In our view, statutory offences should, save in exceptional circumstances, require
the proof of fault as part of the offence. However, for the limited situations where
a strict liability offence may be appropriate, we support the Law Commission’s
approach in principle. However, there still also needs to be requirements for
knowledge or recklessness on the part of or attributable to the defendant.
1.1118 If legislation does not address expressly whether the due diligence defence
applies to a particular offence, the default position should be that the defence
does apply. Leaving it to a court to decide whether the defence should apply by
the application of the test set out in paragraph 6.19 of the Consultation Paper will
make the law too uncertain. Courts are well used to deciding innocence and guilt
on the facts before them, but less well equipped to decide the difficult policy
issues involved in the test set out in paragraph 6.19.
1.1119 Granting such a power/duty to the court would help address the worrying lack of
legislative consistency as to which regulations contain an express due diligence
defence, and which do not.
1.1120 To give one recent example, The Restriction of the Use of Certain Hazardous
Substances in Electrical and Electronic Equipment Regulations 2008 (the ROHS
Regulations) contain a due diligence defence at reg. 21. However, the REACH
Enforcement Regulations 2008 (the REACH Regulations) contain no such
defence.
212