Due diligence defence

A specification serves to define the ingredient being purchased and should form part of the contract between buyer and seller. It is not sufficient to order 1 tonne of citric acid the order should be for 1 tonne of citric acid, anhydrous, to our specification reference... . In the UK a properly drawn up and agreed specification can also form part of a due diligence defence against a prosecution under the Food Safety Act 1990. 

However, the Act does provide for what is called the due diligence defence. This allows the defendant to escape conviction if he can show that he took all reasonable precautions and exercised all due diligence to avoid commission of the offence. The cases show that this is a very difficult defence to sahsfy. In the case of Hicks v. Sullarn bulbs were falsely described as safe. The bulbs had been imported from Taiwan. There were 110000 in all. None had been sampled to test for their safety and no independent test reports were obtained. The defendant s agent in the Far st had checked the bulbs and had reported no defects. The court ruled that the defence had not been made out. 

Where a person has no knowledge of fhe falsify of a sfafement af fhe time of its publication in a brochure, but did when the statement was read by a complainant, the statement would be a false sfafement every time business was done on the basis of fhe incorrecf brochure Wings Ltd v. Ellis. In theory, the due diligence defence applies equally fo offences under s. 14, but, since this section requires knowledge or recklessness before an offence is committed, in practical terms the defence will nof generally be applicable. 

A due diligence defence on the lines of thaf set out in relation to the Trade Descriptions Act applies. 

Regulation 28 abolishes the grounds for defence available under section 157 of the Mines and Quarries Act 1954 in respect of Regulations 18 to 27 and Schedule 1, and substitutes the due diligence defence grounds of Regulation 29. It is applicable only for criminal proceedings. 

Regulation 11 contains what amounts to a due diligence defence provision, whereby a person can escape conviction... 

A Food Safety Act infringement caused by a substandard ingredient can be countered with a defence of due diligence . This requires the defendant to establish that all reasonable checks were made to ensure the ingredient was satisfactory and capable of performing as required. Case history is limited but the operative word for small companies must be reasonable . 

Regulations are subject to the defence provisions of Regulation 29 which applies in criminal proceedings and provides a defence for the accused if he can show that he took all reasonable steps and exercised due diligence to avoid committing the offence. 

However, new Regulations" recognise the fact that a person, other than the owner and not employed by him, may, by his actions or failure to act, cause a breach resulting in an offence and offer the owner a defence if he identifies the person who caused the breach and can prove that he — the owner — exercised all due diligence to avoid the breach. Nevertheless, under s. 36 of HSW the owner may still be liable. 

The extent of personal liability under OHS legislation is generally less than that under environmental law. The use of due diligence is specified as a defence in two states and would certainly protect senior company officers from liability in all other states. But, more than this, in most states ignorance of the contravention is a defence, provided that the ignorance is not negligent or wilful. In New South Wales the Act states that a senior officer is not liable if the... 

It is a defence under these Regulations for a person to show that they have taken all reasonable precautions and exercised all due diligence to avoid the commission of an offence. 

The Regulations provide a defence of due diligence. They also provide for proceedings to be taken against a person other than the principal offender, if it is the other person s fault, and against officers of a company or other body corporate. 

Regulation 23 recognises that any pressure equipment or assembly that carries the CE mark and is accompanied by a declaration of conformity complies with these Regulations. Non-compliance is an offence that, on conviction, carries a custodial sentence, a fine or both. However a defence of due diligence is allowed. 

The remaining regulations are of an absolute nature, which means that their requirements must be met regardless of cost. Nevertheless, in the event of a criminal prosecution for an alleged breach of statutory duty under one of these regulations, regulation 29 allows a defence to be pleaded that all reasonable steps were taken and all due diligence was exercised to avoid the commission of the offence. 

Some regulations do not have the so far as is reasonably practicable caveat. Many of these regulations have an absolute duty for compliance for example, in the Electricity at Work Regulations, Regulation 10 requires that every joint and connection in a system shall be mechanically and electrically suitable for use. In cases such as this, a person charged with an offence under the Regulation has the defence of due diligence available. 

Regulation 29 provides a means of defence in legal proceedings, where a person charged can show that all reasonable steps were taken and all due diligence was exercised to avoid committing the offence. 

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