The theory of due diligence, its necessity under food law and implications if it is not followed – Prof Hyde – Nottingham University
Before the due diligence defence, there was strict liability.
Food law developed especially the safety aspect of food and prohibited adulterated food and unsafe food, food should be fit for human consumption.
Mens rea is the intention to cause harm or commit an act in order for people to be liable – intentional recklessness.
In Fitzpatrick v Kelly 1872-73, this showed that offences created by statutory scheme were strict liability offences (sold an adulterated food or manufactured unsafe food).
The courts created a strict liability offence. The Sweet v Parsley 1970 case is about liability of a land lady for consumption of drugs on her premises, have mens rea, statutory scheme can make it into a strict liability offence, which is harsh. The courts tempered this harshness of strict liability offences.
Therefore due diligence defence was included in statutory provisions to find a way to exercise due diligence and reasonable care to avoid committing the offence.
Some offences don’t permit a defence of due diligence.
In Nurse v Canserve 2019 v Republic of Trinidad and Tobago, courts have rejected the invitation to develop common law equivalents.
Unless a due diligence defence is in statute, you are strictly liable.
The due diligence defence provides a positive incentive to improve practices.
Because a food business can escape liability by demonstrating they’ve exercised due diligence, they put in practices and procedures to obtain in any defence.
The Due diligence defence is written in the Food safety and hygiene Regulation 2013/2996 (regulation 12):
…”a defence to prove that the person accused took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by the accused or by a person under the control of the accused”
Where is the future of due diligence defences? Technology is getting better.
Can we use technology to make it easier to prove all due diligence is taken? Think about data, how long and what format to store it. What are the cost implications?
Corrective and preventative actions – managing the immediate and protecting the future – J Figgins – BRCGS
Internal audits are the most powerful self-checking tool a site has provided its used correctly. It identifies opportunities for improvements. Errors can be checked dependent on severity, scope of an incident and event if asked by regulators, an internal audit record can show that as well. The frequency of audits is important. It’s better to have a programme of audits to help maintain the standard throughout the year, rather than just once a year.
Self assessment tools include validation, verification and monitoring. Records are needed. If you haven’t documented it, it’s hard to show you’ve done it positively.
Conformity and non-conformity:
Dealing with non-conformities: Corrective action is dealing with immediate action. Evidence is created and relevant people understand, there are 28 days for corrective actions. Root cause analysis and preventive action plans are created.
What do I need to do to protect the safety and integrity of the product whilst doing corrections? What do you do to stop it happening? What is the cause so it can be dealt with rather than the symptoms?
With a root cause analysis, there is no prescribed method, it’s a personal choice or company policy
Then you can target the preventive action. You need to monitor or verify activity.
With preventative actions you have an action plan.
An audit is for throughout the year.
Allergens - Enforcement and practicalities - K Gilbertson, Greenwoods GRM LLP
What is due diligence under the Food Safety Act and what’s available if you’re being prosecuted under the Health and Safety at Work act?
Under the Health and Safety at Work act 1974 there are duties on employees to protect the health and safety of employees and third parties such as visitors.
In a food business there is a duty on food business operators. Food business operators put steps in to train staff. Consider systems, procedures and monitoring and supervision. Under the Food Safety Act 1990, there states ‘taken all reasonable precautions and exercised due diligence’. In the Health and Safety at work act it states ‘so far is reasonably practicable’.
Under the Due diligence defence under the Food Safety Act we expect a system of control, records and systems. It’s difficult if you’re a small business and have paper records and systems aren’t implemented effectively.
Due diligence includes records e.g goods in receipts, approaches include allergenic materials in a different storage area, a record keeping system and education piece is needed. In the Natasha case, the root cause is identified. The customer didn’t get what they ordered.
On the otherhand, the Health and Safety at work act states ‘so far as is reasonably practicable, degree of risk can be balanced against the time, trouble and physical difficulty of taking measures to avoid the risk’
You can look in hindsight: an inspector may find what someone could have done. This is a challenge because clients do not set out to break the law. With defences, the defendants must prove on balance of probabilities.
EHO’s rely on the Health and Safety at work act. If they rely on Food safety the disadvantage is that you have one year to bring a prosecution (from it’s discovery by the prosecutor, whichever is earlier.) This is hard as shown in the Natasha and Megan Lee’s case and complex. You would only able to bring a charge under the Health and safety at work act
Look at the Sentencing guidelines.
Food safety offences have a lower level threshold compared to health and safety.
For allergens there is currently there is a dual pathway for enforcement action:
- Food Safety Act 1990 s14 and s15
- s3(1) of Health and Safety at Work Act
Author: Eugenia Choi, Food Regulatory Special Interest Group, Events