Criminal Liability in Regulatory Contexts Responses - Law ...

Justices’ Clerks’ Society
1.1185 Agree. Question 1: agree; question 2: possible not necessary – anticipated
lengthening or arguable issues may be illusory as similar matters will already be
argued in mitigation in such cases.
The Magistrates’ Association
1.1186 Agree. Question 1: yes; question 2: no, there should be no restriction.
David Wood
1.1187 Question 1: no, the more general defence should apply. This would require D to
show that due diligence had been exercised in all circumstances, rather than the
stricter requirement of showing that D took all precautions and exercised all due
diligence to avoid commission of the offence.
1.1188 Question 2: defence should be available in all circumstances.
Care Quality Commission (CQC)
1.1189 See above (proposal 14).
The Faculty of Advocates
1.1190 The concept of criminal offences which do not require the prosecution to
establish fault does not seem to sit very comfortably with Proposals 1 and 2. If
there is no fault, it is hard to see why there should be criminal liability. We agree
that someone who has used due diligence to avoid committing the offence ought
not to be liable to conviction and we also agree with the particular formula by
which it is expressed in Proposal 15. In particular, we agree that due diligence
should be enough and that “all” due diligence is too onerous a requirement. The
level of diligence that is due must depend on the nature of the risk involved and
the practicability of the steps available to avoid it. However, we have reservations
about the proposals that it should be for the courts to apply such a defence and
we not that this reliable on judicial law-making seems to sit uncomfortably with
the rejection (CP 3.19) of simply trusting the judiciary to apply the offence with
the exercise of some ingenuity in the application of their law-application function .
In our view, if the meaning of a statute is to be qualified at all, it ought to be done
by statute.
1.1191 We also have reservations about the proposition that the onus ought to be on the
accused. We are more comfortable with the position reached in Harvey and Reid
v HM Advocate 2005 SCCR 282 in terms of which, once the accused has led
evidence which puts a defence in issue, it is for the prosecution to negate it by
evidence.
1.1192 Whether or not the application of the defence should be excluded from any
statute comes to be a question about whether strict liability offences are justified
at all. There has been a clear policy view for many years that they are. That being
so, we take it that Government would wish to exclude the defence from all those
offences which it is desired to characterise as strict liability.
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