knowledge | 17 July 2020 |
Disputes: Strict Liability Regulatory Offences - Why Ignorance might not be a Defence
In a recent judgment related to a regulatory prosecution, the High Court has reiterated that the imposition of strict liability under a regulatory framework may follow regardless of a lack of knowledge of the underlying offending.
The Taxi Regulation Act 2013 prohibits a person, who is not the holder of a Public Service Vehicle licence for a particular vehicle, driving that vehicle for hire or reward in a public place. A person, who does so, commits an offence. In addition, the vehicle owner may also be criminally liable. This latter offence is a strict liability offence and is typical of many regulatory offences.
The particular issue that arose for the court in National Transport Authority v Beakhurst1, was whether, in order to secure a conviction against the vehicle owner for this strict liability offence, the prosecution had to prove that the owner knew of the use of the vehicle by the unlicensed driver.
Barr J held that this was unnecessary. He pointed out that in the area of “regulatory offences” or “public welfare offences” it was often necessary to create strict liability offences, to ensure compliance with the law by the holder of a licence or the operator of an activity, so as to protect those affected by the operation of that licence or activity or to protect the public at large. The primary objective of treating an offence as one of strict liability was to encourage greater vigilance by those in a position to prevent the commission of a prohibited act. However, he added that while the offence here was a strict liability offence, a due diligence defence was still available to the accused.
Barr J went on to explain that in order to succeed with a due diligence defence, it was not sufficient for the vehicle owner here to establish his lack of knowledge of the commission of the underlying offence. If that were sufficient, many of the regulatory provisions provided for by statute would be set at nought. It would also encourage those whose job it was to ensure regulatory compliance to avoid making enquiries or taking reasonable precautions, so as to avoid acquiring knowledge of a regulatory breach. It would be absurd for the law to effectively put a premium on ignorance.
Instead, it was reasonable that where a person had the means of controlling an activity and ensuring that it was only carried out in accordance with the relevant regulations, that they should be liable for a breach of those regulations, unless they could establish on the balance of probabilities that they took all reasonable care to prevent a breach of the regulations occurring – the due diligence defence.
This case is a useful reminder to those operating in regulated areas of their potential obligations under the law and for the need to ensure that they have appropriate compliance procedures in place. Turning a blind eye to a risk of regulatory breach is not an option.
Our Disputes Team has significant experience in advising clients on a variety of issues in and around regulatory enforcement and would be pleased to provide further information. Alternatively, your usual contact in McCann FitzGerald would be happy to assist.
-  IEHC 301.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.