Due diligence or no negligence defence

The law recognises that in some circumstances it is only fair to accept that the individual has done all that they can to avoid harm.

The law recognises that in some circumstances it is only fair to accept that the individual has done all that they can to avoid the problem or harm intended to be prevented by the strict liability legislation.

For example a manufacturer or producer has followed good practice and used all reasonable care and skill to protect the public using known information about processes or materials and technical know how.  In such situations Parliament will sometimes include what is known as a ‘due diligence’ or ‘no negligence’ defence.  This enables the defendant to raise such a defence that he or she has done all that they reasonably can do.

This is not however always the case or clear.  As illustrated in the case of London Borough of Harrow v Shah and Shah 1999, where the defendants were charged with selling a lottery ticket to a boy under the age of 16.  The defendants claimed that they had put up clear notices warning staff not to sell tickets to persons of a given age as well as providing staff training.  The Divisional Court held that the offence was a strict liability offence and that they could find nothing to indicate that Parliament had intended to provide a 'due diligence’ defence. 

The case was referred back to the Magistrates to deal with on that basis.

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