Criminal Liability in Regulatory Contexts Responses - Law ...

Local Government Regulation (LGR)
1.1179 Q1: We consider that the stricter form namely “the taking of all reasonable
precautions AND the exercise of all due diligence to avoid the commission of an
offence” would be a more appropriate form of the defence. It is a defence that is
clearly understood and there already exists a wealth of case law on its meaning
and application. This in turn means that businesses can be consistently advised.
The word “all” is often important. If it is removed, this could lead to an erosion of
the statutory protection for consumers. As a catch-all for all offences, we would
recommend it should not be set at the “lowest common denominator” for due
diligence defences, but at the highest level. We consider that having different
versions of this defence will lead to confusion and inconsistency on enforcement.
We therefore disagree with this proposal
1.1180 Q2: See response to proposal 14, which encapsulates our views on this issue
Allen & Overy
1.1181 See above under proposal 14.
Association of Chief Trading Standards Officers (ACTSO)
1.1182 Trading Standards Services are familiar with common form of statutory defence.
Clarified through case law and has a degree of certainty. What is reasonable for
large business not necessarily so for small business. In context, ACTSO would
prefer existing form of defence remain to avoid uncertainty that change would
create (change could lead to increased costs for regulators and businesses until
new defence was fully understood). The 2 stage defence (all reasonable
precautions and all due diligence) fits with modern practices of large businesses.
Preventing regulatory breaches depends significantly on good design of systems
(eg training employees in multiple locations). Defence of having applied due
diligence in all circumstances seems to imply focus on specific breach by a
business, rather than focus on design of systems to prevent similar breaches
more generally. Could result in significant reduction in protection for consumers
and ACTSO favours the more strict form of defence should proposal be pursued.
BBA
1.1183 Question 1: would welcome application of a defence to any statutory offence not
requiring proof that D was at fault in engaging in the wrongful conduct. Prefer less
onerous standard that D exercised “due diligence in all the circumstances” rather
than “all reasonable precautions and proof that the defendant exercised all due
diligence”. Latter would create too many complexities for D and would make it
difficult to discharge required burden of proof. Nearly always possible to suggest
another not unreasonable precaution that could (with hindsight() have been taken
and accordingly a failure to have done “all” that was required. Would not
therefore adequately redress imbalance between interests of the prosecution and
defence caused by presumption of fault principle. Our form is more flexible but
still properly onerous.
1.1184 Question 2: Not aware of any statutes in financial services to which defence
should not apply. Do not agree with suggestion that road traffic context may not
be suitable for application of defence.
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