Due Diligence
The vast majority of offences under the Licensing Act and indeed under food safety, health & safety and other regulatory legislation carry a potential due diligence defence.
The essence of such a defence is in the operator establishing that they have done everything that they could possibly do to prevent the offence occurring in the first place. It has to be said that this is an uphill struggle! There are very few cases in which there is not something additional which could have and should have been done.
The difficulty in establishing a defence does not render pointless the process of using best endeavours. Even if a full defence cannot be made out the existence of a rigorous system of prevention will provide powerful mitigation which may reduce fine levels substantially.
From a practical point of view companies need to make sure that they have good policies and procedures in place to prevent problems occurring. These need to be then re-enforced with a comprehensive program of training (including refresher training) to make sure that staff on the ground are fully aware of what is expected of them. In addition, the company should then carry out spot checks or audits to make sure that systems are being carried out. Any problems identified need to be resolved quickly and the underlying processes revisited.
We can help in carrying out health checks of your due diligence systems having a breadth of experience in dealing with such cases and knowing what regulators and indeed Courts expect.
Graeme Cushion or any one of his team will be happy to advise further.
