Due diligence

28 April 2005
Due diligence

The due diligence defence is available to 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 food poisoning. The offences are "absolute", meaning that the prosecution does not have to show the defendant intended to commit an offence; it is enough that a particular provision of the Food Safety Act 1990 (FSA) or of any associated regulations has been breached.

In order to ensure a degree of fairness for the defendant, the "due diligence" defence was incorporated into the FSA 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 FSA 1990, it is a defence for the person charged to prove:

  1. that all reasonable precautions were taken; and
  2. that they exercised all due diligence to avoid the offence whether personally or any person under their control.

    These requirements do not apply in the alternative - they must both be shown.
    "Taking all reasonable precautions" relates to setting up systems of control which are appropriate to the risk. Further details on systems of control are in our article on HACCP. What is reasonable must be determined on the size and resources of the business.
    "Exercising all due diligence" involves having a system in place which reviews and audits the operation of the system to ensure it is operating effectively.

    Grounds for the due diligence defence are established if the following circumstances exist:

    Preparer or importer of food (Preparation includes manufacture, processing or treatment. Treatment includes subjecting food to hot or cold treatment and is therefore wide enough to include a retailer who sells chilled food).·the offence was caused by another person not under their 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 person did not know or had no reason to suspect at the time the offence was committed that the act or omission would amount to an offence.
    Seller of branded goods·the offence was caused by another person not under their 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 too 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. 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 clear days before the hearing:

  3. an act or default of another person.
  4. reliance on information supplied by another person.
    To use these elements in a defence the defendant has to demonstrate that they 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

  5. Positive acts need to be taken by the defendant. The defendant cannot rely on the defence of failing to do something.
  6. 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:

  7. 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.
  8. Selection of competent staff. Staff should receive adequate training and supervision. All levels of management should be aware of the food safety procedures.
  9. Provisions for hygiene; packing; storage; labelling; advertising and complaints.

    Exercising all due diligence

  10. Written records of the reviews/audits of control systems are useful for demonstrating due diligence
  11. 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 control systems and the development of remedial measures.

    Roy Tozer is a Partner in the Regulatory Group of DLA Piper Rudnick Gray Cary UK LLP. roy.tozer@dlapiper.com


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