Due Diligence Defence Research Articles

Food analysis: a practical guide

Food analysis: a practical guide

Liability for Dispensing Errors in Hong Kong.

The United Kingdom (UK) case R v Lee (2010) EWCA Crim 1404 resulted in a pharmacist being convicted for an inadvertent dispensing error and paved way for the decriminalisation of such errors by way of a due diligence defence enacted in 2018. In relation to Hong Kong (HK), what is its legal position for dispensing errors, and can it follow the decriminalising steps of UK? The primary objective of this paper is to explore whether and how HK can reach the normative position for a dispensing error legal regime: (1) I posit that the normative position for healthcare professional (HCP) liability for dispensing errors should prioritise the public interest of minimisation of future dispensing errors over the retribution of past wrongs; (2) I illustrate HK's current position for the liabilities of HCPs on dispensing errors, focusing analysis on the relatively controversial aspects of HK's criminal liability, referencing the landmark cases Hin Lin Yee v HKSAR (2009) 13 HKCFAR 142 and Kulemesin v HKSAR (2013) 16 HKCFAR 195 to assist my analysis of the requisite mental element for relevant statutory offences; (3) through comparison with UK's development post-R v Lee and application of Rule of Law principles, HK's current position is critiqued, coming to the conclusion that while there are compelling reasons for the decriminalisation of dispensing errors in HK, the prerequisite for this to happen is an overhaul of regulatory frameworks by significantly increasing levels of accountability.

Personal Tax Planning: Due Diligence Defence to Liability for Unpaid Statutory Remittances

Several potentially onerous liabilities may be imposed on directors outside the provisions of the statute under which their corporation is incorporated or continued. In particular, some of the most common sources of personal liability for directors arise under statutes requiring the corporation to pay employee payroll source deductions (income tax, Canada Pension Plan contributions, and employment insurance premiums), withholding taxes owing by non-residents of Canada, and net goods and services tax and harmonized sales tax remittances. These statutory regimes all have certain features in common, including a statutory due diligence defence. This article examines the state of the law under the objective standard of care first adopted in the tax context by the Federal Court of Appeal in <i>Buckingham</i>. In particular, it examines the principles that guide jurisprudence on the due diligence defence, the factual circumstances that have met with success or failure for appellants, and how the defences apply differently depending on whether a director is an inside or outside director.

The Due Diligence Defence against the Liability of the Credit Rating Agency

The Due Diligence Defence against the Liability of the Credit Rating Agency

Corporate Criminal Liability for Corruption Offences and the Due Diligence Defence: A Comparison of the Dutch and English Legal Frameworks

The Utrecht Law Review is an open-access peer-reviewed journal which aims to offer an international academic platform for cross-border legal research. In the first place, this concerns research in which the boundaries of the classic branches of the law (private law, criminal law, constitutional and administrative law, European and public international law) are crossed and connections are made between these areas of the law, amongst others from a comparative law perspective. In addition, the journal welcomes research in which classic law is brought face to face with not strictly legal disciplines such as philosophy, economics, political sciences and public administration science.The journal was established in 2005 and is affiliated to the Utrecht University School of Law. If you wish to receive e-mail alerts please join the mailing list.

Corporations and the Presumption of Innocence

Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants.

PHARMACY LEGISLATION: PUBLIC PROTECTOR OR PROFESSIONAL HINDRANCE?

Pharmacy originates from a background of medication compounding and supply. More recently, this role has developed away from an absolute focus on the supply of pharmaceuticals with, for example, the advent of pharmacist prescribing. Nevertheless, for a majority of the profession, medication supply remains a core activity. Regulation of the pharmacy profession is now the responsibility of the General Pharmaceutical Council, although up until 27 September 2010, this role fell to the Royal Pharmaceutical Society of Great Britain (RPSGB). Before this change, in one of the most high-profile legal cases involving a pharmacist in a professional capacity, R. v Lee, a pharmacist was prosecuted firstly for gross negligence manslaughter, later revised to offences under the Medicines Act 1968, for a single error relating to medication supply, and was given a suspended custodial sentence. Offences against sections 64 or 85 of the Medicines Act are absolute offences and there is no due diligence defence. Prosecution of a pharmacist for the supply of incorrect medication may seem a measured course of action to protect the public from the wrongful supply of potent pharmacotherapeutic agents; however, further analysis of Lee indicates that this approach may be counterproductive. An appeal of the original conviction in the Lee case has resulted in a clarification of the interpretation of section 85(5); however currently, prosecutions under section 64 are still a possibility. Owing to the seriousness of a criminal conviction under section 64, this continuation will potentially stifle the profession's ability to learn from dispensing errors.

Doing Justice to the Environment

This article examines some of the characteristic features of environmental offences, in particular the ways in which these offences and their treatment in the courts deviate from general principles of criminal law. Despite the fact that environmental offences are often labelled as ‘quasi-criminal’, there has been long-standing criticism of penalties, particularly the low level of fines in magistrates' courts. The article also considers the possible reasons behind this and argues that, as well as the inexperience of lay magistrates, the perception of environmental crime, fuelled by the strict liability nature of most environmental offences, is a significant factor. The recent introduction of civil sanctions is evaluated along with recommendations for new sentencing powers and sentencing guidelines. The article concludes by considering further suggestions for more effective enforcement of environmental crime in the courts, including the introduction of specialist magistrates' courts and the use of more fault-based offences or a general defence of due diligence for environmental crimes.

PETROLEUM EXPLORATION AND PRODUCTION- WHAT ARE THE ENVIRONMENTAL OBLIGATIONS OF JOINT VENTURE PARTICIPANTS?

Participants in joint venture operating agreements in Australia are potentially liable for environmental offences under State environmental statutes as well as Petroleum (Submerged Lands) Acts and State Petroleum Acts. In addition, adverse environmental impacts can affect an array of other commercial factors, including the future costs of obtaining finance, insurance cover and access to new acreage.The nature of potential risks and liabilities are such that environmental management must be regarded as an on-going risk management activity, integrated into all planning and day-to-day operations in the same way that health and safety management is now being widely incorporated in petroleum industry activities. Joint venture participants generally pay considerable attention to the calibre of the technical (geological and engineering) advice provided by the operator. It follows that they should also place considerable importance on the calibre of environmental management expertise provided by the operator and its contractors.A successful system of management should be modelled on a due diligence defence, which requires that those who are directing joint venture activities exercise due diligence, requiring the establishment of a proper system to prevent violations of the law and the effective operation of that system, including supervision, maintenance and improvements in business methods.

The ISO 9000 series and its implications for HACCP

The ISO 9000:1987 series of standards for quality systems concentrates on the contractual relationship between supplier and customer, and the conformity to customer specifications. The hazard analysis critical control point (HACCP) concept, although its origins also lie in a supplier-customer relationship, emphasizes the need to produce food that could be assured to be safe. Both of these approaches have been adopted within the food industry. Modern food legislation will frequently provide for the possibility of a defence of due diligence by a food manufacturer, supplier, retailer or caterer. The adoption of HACCP or certification under ISO 9001 or ISO 9002 is seen by many companies as an appropriate step providing for a due diligence defence. In this context, the two approaches have some significant differences. However, it is more important for a company to be motivated towards achieving quality, with the intention of preventing the possibility of prosecution, rather than merely to provide a defence in the event of prosecution.

Beyond R. v. Sault Ste. Marie: The Creation and Expansion of Strict Liability and the Due Diligence Defence

The Supreme Court of Canada decision in R. v. Sault Ste. Marie created strict liability offences as a middle ground between mens rea offences and absolute liability offences. Strict liability offences allow the defence of due diligence, where the accused has exercised a reasonable standard of care in protecting against the event which occurred. This article examines the acceptance, incorporation and development of strict liability offences and the due diligence defence by Canadian courts, legislatures and industry. In Canadian courts, strict liability and the due diligence offence arise in quasi-criminal, public welfare offences. The reverse onus imposed by the due diligence defence was challenged and upheld in a Charter case. Cases have shown that corporations and directors may be held directly and vicariously liable for the actions of employees and contractors under strict liability principles. Legislatures at both the provincial and federal level have incorporated strict liability and the due diligence defence into a wide variety of quasi-criminal statutes. Industry has responded by taking positive steps to ensure it is complying with legislated standards. The article notes that strict liability is a logical and timely development for Canadian law, as the "due diligence" defence encourages industry's co-operative efforts in the protection of the public interest without hindering regulatory and legal enforcement of public welfare legislation.