The due diligence defence can be used by anybody accused of a breach of food safety regulations. Essentially, the defence is that the accused took all reasonably practicable steps to avoid the breach.
The main food safety offences are set out in the article on food poisoning. The offences are "absolute", meaning that the prosecution does not have to show that the defendant intended to commit an offence; it is enough that a particular provision has been breached in the Food Safety Act 1990 or in any associated regulations.
In order to ensure a degree of fairness for the defendant, the "due diligence" defence was incorporated into the Food Safety Act 1990. The defence was already established in other regulatory sectors, such as trading standards and in some health and safety legislation.
What does the defendant need to show to use the defence?
Under the Food Safety Act 1990, it is a defence for the person charged to prove:
- that all reasonable precautions were taken
- that he exercised all due diligence to avoid the offence, whether by himself or any person under his control
These requirements must both be met.
"Taking all reasonable precautions" relates to setting up systems of control that are appropriate to the risk. Further details on systems of control are given in the article on HACCP. "Exercising all due diligence" involves having a system in place that reviews and audits the operation of the system to ensure it is operating effectively.
Grounds for the defence are established if the following circumstances exist:
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Person accused |
Circumstances that must exist |
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Preparer or importer of food
(Preparation includes manufacture, processing or treatments. Treatment includes subjecting food to hot or cold treatment and is therefore wide enough to include a retailer who sells chilled food.) |
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the offence was caused by another person not under the preparer or importer's control or by reliance on information supplied by another person
the person either carried out reasonable checks on the food or relied on checks carried out by whoever supplied the food, and
the preparer or importer did not know or had no reason to suspect at the time that the act or omission would amount to an offence
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Seller of branded goods |
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the offence was caused by another person not under the seller's control or by reliance on information supplied by another person
the sale or intended sale was not done under the seller's name or trademark, and
the seller did not know or had no reason to suspect at the time that the act or omission would amount to an offence.
The defendant has to prove the defence on a balance of probabilities. In other words, it is more likely than not that all reasonable precautions were taken and that all due diligence was exercised. Remember that both parts of the defence have to be shown.
A defendant wishing to rely on the due diligence defence has to serve a notice on the prosecution at least two days before the hearing.
When the defendant claims the offence was caused by either of the following, the notice needs to detail the causes and be served at least seven days before the hearing:
- an act or default of another person
- reliance on information supplied by another person
To use these elements in a defence the defendant has to demonstrate that he had no control over the other person.
Practical points
The due diligence defence is easier to prove when a defendant has a management system which continually assesses the risks to food safety and allocates resources to minimise the risks. The following principles have been established in case law as to what constitutes "all reasonable precautions" and "exercising due diligence".
All reasonable precautions
- Positive actions need to be taken by the defendant. The defendant cannot rely on the defence of failing to do something
- Controls have to be appropriate for the level of risk. Controls therefore depend on an analysis of the hazard and frequency of occurrence, together with the nature and size of the business. For example, large operators normally require more detailed systems
- Control mechanisms include:
– Inspection and sampling of materials. Such inspection and sampling must be statistically significant and representative. Relying on blanket assurances from suppliers that a particular product meets the specification should be discouraged. The defendant should have some evidence of having tested the supplier's quality assurance systems
– Selection of competent staff. Staff should receive adequate training and supervision. All levels of management should be aware of the food safety procedures
– Provisions for hygiene, packing, storage, labelling, advertising and complaints
Exercising all due diligence
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Written records of the reviews/audits of control systems are useful for demonstrating due diligence
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It is important that written records show those having the directing mind and will of the company (that is, directors/officers or those acting in such a capacity) have been consulted in reviews of the effectiveness of the control system and the development of remedial measures
by Charles Arrand
Charles Arrand is an associate of the regulatory group at law firm DLA.
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