Criminal Liability in Regulatory Contexts Responses - Law ...

Residential Landlords Association
1.1126 We strongly endorse this proposal. We have already pointed out that this is
second best but, nevertheless, it is an improvement on the current position. We
do not necessarily endorse the proposal regarding the burden of proof. Whilst it
should be the defence to raise a prima facie case we believe then the burden
should switch to the prosecution to negative the defence. This is in line with the
normal criminal standard of proof and is an already accepted approach in certain
instances.
Trading Standards North West (TSNW)
1.1127 We accept as a reasonable proposal. We think that s 75 RTA is the only offence
that trading standards commonly encounter wherein a defence of due diligence
does not already apply.
Kingsley Napley LLP
1.1128 We agree. We consider the ambit of the defence should be outlined in statute,
rather than left to the courts to determine.
PROPOSAL 15
Clifford Chance
1.1129 Question 2: agree in principle; should apply to all offences whether criminal or
civil but do not consider that the courts should merely have the “power” to apply a
due diligence defence depending “on the court’s assessment of the strength of
the case for its application … as a basis for promoting fairness to accused
persons … without unduly hindering regulatory prosecutions” (CP 6.19). Rather,
due diligence should be a defence to all offences that do not require fault on the
party of the accused, unless legislation creating the offence expressly provides
otherwise. Giving court the “power” to apply this defence begs the question as to
when the court should exercise that power and would leave the law far too
uncertain.
1.1130 Do not consider courts and tribunals well-equipped to make the policy-based
assessment demanded by para 6.19 CP.
1.1131 Defence should take the form of the accused proving it has taken reasonable
measures to comply with the law. Burden (civil standard) should be on the
accused.
1.1132 Question 1: Due diligence should not take the stricter form set out in that
question. It is enough that what are reasonable measures will necessarily
depe4nd upon eh foreseeable consequences of a failure to comply with the law.
If consequences include death or personal injury, the requirement standards of
reasonableness will be more than if eg a regulator will receive a piece of
information late.
1.1133 Question 2: favour the application of the defence to all strict liability offences
unless parliament, in primary legislation, decides otherwise. In any event,
defence should apply to all offences, whether criminal or “civil” under Financial
Services and Markets Act 2000 and FSA’s rules.
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