Day 105 - 16 Mar 95 - Page 04

     
     1        A.  I was explaining -----
     2
     3   MR. JUSTICE BELL:  That was when the Act was passed?
     4        A.  Yes.
     5
     6   MR. MORRIS:  So you said, though, when you mentioned the Act
     7        being brought in, you linked that to due diligence.  Can
     8        you explain what the relevance of that has then?
     9        A.  I feel very -----
    10
    11   MR. JUSTICE BELL:  That is a matter of law.  If someone sells
    12        food which appears to be in contravention of the provision
    13        of the appropriate section of the Act, so that they would
    14        normally be found guilty of it, they, nevertheless, have a
    15        defence if they can prove on the balance of probabilities
    16        that they took all due steps, used all due diligence, to
    17        avoid what did happen happening?
    18        A.  That is the defence which was introduced.
    19
    20   Q.   That is the essence of it, right.  What was the situation
         before that?
    22        A.  For certain offences there was not, in fact, any
    23        defence.
    24
    25   Q.   It was strict liability?
    26        A.  It was strict liability.
    27
    28   Q.   It did not matter whether it was your fault or not; if it
    29        happened, that was it?
    30        A.  Indeed.
    31
    32   Q.   Whether you have been at fault or not might well affect the
    33        penalty which was imposed, but it did not give you any
    34        defence to the charge?
    35        A.  Yes.  Certain well-known charges were absolute and did
    36        not carry a defence and the difference after 1990 was that
    37        a defence was introduced.
    38
    39   MR. MORRIS:  Yes.  You said since the 1990 Food Safety Act it
    40        has become necessary for all companies to be able
         demonstrate due diligence, should they choose to use that
    42        as a defence.  So, in order to use that as a defence, they
    43        have to demonstrate it?
    44
    45   MR. JUSTICE BELL:  Yes, the burden is on them.  Generally
    46        speaking in a prosecution for any offence the prosecution
    47        have to prove their case so that the magistrates, or the
    48        jury, or whatever, are sure.  There are some cases where
    49        the ground is there for a successful prosecution, but if
    50        the person accused can show that they have taken all 
    51        reasonable precautions to avoid it, then provided they can 
    52        prove that on the balance of probabilities, not to make the 
    53        magistrates sure, then they have a successful defence.
    54
    55        You are saying they did not have that defence before 1990
    56        but that they did after 1990.  So, appreciating that they
    57        might need to use that defence, it became only sensible to
    58        have all the procedures in hand which would provide a
    59        foundation?
    60        A.  Yes, indeed, to provide evidence in order to support