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Due diligence

Have you taken all reasonable steps or precautions and have you exercised all due diligence to avoid committing an offence?

The concept of due diligence

Legislation enforced by Trading Standards creates a number of offences. In many cases, the prosecution has to prove "mens rea" or guilty knowledge. This means they must show that a defendant had an intention to do something wrong.

However, some laws create a number of offences that simply contain an absolute prohibition against doing something. In these cases it does not matter that the defendant did not intend to do wrong or was unaware of requirements, the fact that he had contravened the law is sufficient to allow a court to convict.

To balance the scales of justice, Parliament has therefore provided various defences and alternatives. This means that the law is recognising the efforts made by businesses to comply with its demands. This system includes the defence of due diligence.

Due diligence defence guidance notes [36KB]

Contents include:

  • reasonable precautions and due diligence
  • sitting back and doing nothing is unlikely to protect you
  • if a reasonable step or precaution is not taken, any defence is likely to fail
  • taking reasonable steps is likely to involve setting up a system of control that has due regard to the risks and the law involved
  • due diligence means ensuring that your system of checks works and that you can prove it
  • what is reasonable will depend upon particular circumstances
  • a good practice guide
  • assess the risk
  • establish what you are going to do about it

You should consider the following:

  • document your solution
  • operate your system
  • review your system
  • getting it right

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Article utilities:  Bookmark and Share Print Print this page Last updated: 22 Aug 2018 at 11:37