Criminal Liability in Regulatory Contexts Responses - Law ...

Trading Standards South East Ltd
1.1156 TSSE believes that if proposal 14 is accepted it should take the form of the
stricter version of ‘all reasonable precautions and exercised all due diligence to
avoid the commission of the offence’. There is already an extensive body of case
law that exists to serve the Courts and all parties concerned with interpretation as
to this defence. As a result, it is applied consistently by the Courts and
interpreted consistently by enforcement agencies. This is turns means that
businesses can be consistently advised. TSSE have already stated that it
believes having different versions of this defence will lead to confusion and
inconsistency on enforcement.
Judges of the Court of Session
1.1157 We agree that such a defence should be available and expand out in view in
answer to question 1 below.
1.1158 Q1: We think the defence should be in the stricter mode if a court is to be given
power to read it in to statute where Parliament has not explicitly provided for such
a defence.
1.1159 Q2: We do not think that we can suggest to Parliament which statutes if any
should not be subject to such a defence.
Chamber of Shipping
1.1160 We would support the proposed defence that “due diligence was exercised in all
the circumstances”. This would provide greater flexibility on a case-by-case
basis. The defendant would not be required to “do everything possible” but all
things considered to be relevant in a given situation. A defendant who had not
taken every action or put every precaution in place would not necessarily be
“guilty” if the arrangements were sufficient and adequate to respond to the
expected and anticipated risks of the operation but the event was unusual,
exceptional or extreme.
1.1161 Q1: It follows that we do not support the alternative stricter version which implies
a requirement to put in place additional precautions beyond the ordinary scope of
due diligence envisaged in Proposal 15. By way of example, experience might
indicate that one spare tyre is adequate as a replacement for the occasional
puncture whereas “all reasonable precautions” might be interpreted as two for the
possible (but unlikely) risk of an exceptional emergency.
1.1162 Q2: This may be appropriate. However, without a more definitive indication of the
possible areas of exclusion, we are not able to offer comments.
The Institute of Employment Rights
1.1163 We welcome the thrust of the proposals 14 and 15. We also agree that the
burden of proof should be placed on the defendant to establish a defense and
that this should take a stricter form, as set out in question 1.
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