Criminal Liability in Regulatory Contexts Responses - Law ...

North East Trading Standards Association (NETSA)
1.1164 We are of the opinion that where a due diligence defence is introduced, as
proposed in 14 above, the defence should be in the form ‘take all reasonable
precautions and exercise all due diligence to avoid the commission of the
offence’.
Trading Standards Institute (TSI)
1.1165 Q1 Yes – the stricter form has been tested before the courts many times and in
our experience this is sufficient.
1.1166 Q2: TSI would like to think that offence involving under-age sales should still
have a due diligence defence as Trading Standards Professionals are often
looking for negligent failures in systems rather than a guilty mind. We would,
however, welcome consideration of other offences, subject to consultation.
1.1167 Agree.
QEB Hollis Whiteman Chambers
1.1168 Q1: yes; Q2: yes.
Kiron Reid, Liverpool Law School
1.1169 Specifically, regarding the proposal in para. 1.77 & reasoning in paras. 1.75 –
1.76. This would modernise and rationalise the law and help provide consistency.
There is nothing wrong with the presumption of fault per se, what is wrong (as
you say at para. 1.72) is that it is inconsistently applied and lacks objective
criteria. Therefore the wording of statutes about fault should be clearer, as you
suggest here. The examples in the full paper on when the courts have interpreted
some cases as strict liability and others as not illustrates the inconsistency very
clearly: “We suggest that there is in fact nothing in principle to distinguish these
cases. It does not seem likely that what drives the distinctions the courts have
drawn between ‘true’ crime and ‘regulatory’ crime has been some intrinsic factor
present in one but absent in the other.”
1.1170 Although in my work I have called for clear statements about whether strict
liability should be applied or not (the default to be generally not) and have
critiqued the ‘true crime’ distinction, I did not myself articulate this point that you
make obvious of the inconsistency in criteria and application (except in relation to
the extreme example of liability for individuals in drug possession cases). 30
30 K Reid, “Strict Liability: Some Principles for Parliament” (2008) 29 Statute Law Review 173, at 185.
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