Due Diligence Defence
A legal defence available to food businesses charged with food safety offences, requiring proof that all reasonable precautions were taken.
The due diligence defence is a critical legal concept for every food business operator in the UK. Under Section 21 of the Food Safety Act 1990, if you are charged with a food safety offence, you can defend yourself by proving that you took all reasonable precautions and exercised all due diligence to avoid committing the offence. This defence recognises that even well-run businesses can occasionally have problems — the law does not demand perfection, but it does demand that you have proper systems in place and that you follow them. For hospitality businesses, the due diligence defence essentially comes down to one question: can you prove that you did everything reasonably within your power to ensure food safety?
Key Points
- Available under Section 21 of the Food Safety Act 1990
- Must prove you took ALL reasonable precautions and exercised ALL due diligence
- Consistent, timestamped records are your strongest evidence
- Systems must be proportionate to your business size and risks
- Digital records are particularly strong because they cannot be backdated
What Constitutes Due Diligence
Due diligence in food safety means having a comprehensive and proportionate food safety management system that you actively follow. Courts will look for evidence that you had a documented HACCP or SFBB system appropriate to your business, that you monitored critical control points and recorded the results, that you trained your staff to an appropriate level, that you sourced food from reputable suppliers and checked deliveries, that you had cleaning schedules and followed them, that you had allergen management procedures, and that you investigated and acted on any problems or complaints. The key word is "reasonable". A small cafe is not expected to have the same level of documentation as a large food manufacturer, but it is expected to have systems proportionate to its risks.
Building Your Evidence
Your due diligence evidence is built through consistent record-keeping over time. This includes daily temperature logs for fridges, freezers, and cooked food, completed cleaning schedules, staff training records with dates and certificates, delivery check records, allergen information records, maintenance records for equipment, and records of any incidents, complaints, and corrective actions taken. The strength of your due diligence defence depends on the quality, consistency, and completeness of these records. Gaps in records suggest gaps in practice. Digital food safety management systems like Paddl provide timestamped, tamper-proof records that are particularly strong evidence because they cannot be backdated or fabricated.
When Due Diligence Fails
The due diligence defence will fail if the court finds that your precautions were not reasonable or that you did not exercise genuine diligence. Common reasons for failure include having a food safety management system but not following it, having gaps in monitoring records, not acting on known problems, not training staff adequately, continuing to use a supplier you knew was unreliable, and having systems that were not proportionate to the risks of your business. The defence is assessed on the balance of probabilities in criminal cases, and the burden of proof falls on the defendant to show due diligence.
Frequently Asked Questions
Is the due diligence defence available for allergen offences?
Yes. The due diligence defence applies to all offences under the Food Safety Act 1990, including those related to allergen management. To use it, you would need to demonstrate that you had proper allergen management procedures, trained your staff, maintained accurate allergen records, and could not reasonably have known about the problem.
Can a manager be personally liable?
Yes. Under Section 36 of the Food Safety Act 1990, if an offence is committed by a business due to the act or default of another person (such as a manager), that person can also be charged. Additionally, under Section 36, directors and officers of a company can be personally liable if the offence was committed with their consent or connivance.
How far back do records need to go?
There is no specific legal requirement, but courts and investigators will want to see records covering a reasonable period. Best practice is to retain food safety records for at least 12 months. For allergen-related incidents, longer retention may be advisable. The more comprehensive your historical records, the stronger your due diligence defence.
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