The concept of due diligence
Legislation, including the RoHS regulations, creates a number of offences. In many cases, the prosecution has to prove “mens rea†or guilty knowledge. This means they must show an intention to do something wrong.
However, some laws create a number of offences that simply contain an absolute prohibition against doing something. In the case of RoHS, this would be placing non-compliant products on the market. In these cases it does not matter that you did not intend to do wrong or were unaware of requirements, the fact that you have contravened the law is sufficient to allow a Court to convict.
Therefore to balance the scales of justice, Parliament has provided various defences and alternatives. This means that the law is recognising the efforts made by businesses to comply with its demands. This system includes the defence of due diligence.
To use this defence, a person must prove that he took all reasonable steps and exercised all due diligence to avoid committing the offence. If he can do so he is entitled to be acquitted. Whether or not a defence will be successful depends on the circumstances surrounding each case. What amounts to a successful due diligence defence has exercised the minds of many judges over many years and has resulted in a number of appeal cases which in themselves help us to understand more clearly what businesses have to do to avoid prosecution.
Reasonable Precautions and Due Diligence
The form of wording for this type of defence generally requires a business or person to:
• have taken all reasonable steps or precautions and
• have exercised all due diligence to avoid committing the offence
In terms of RoHS, this means that you have looked at the way in which you control your production and material supply and put in place a series of appropriate checks to prevent any problems occurring. Once you have done this you must ensure that the system of checks is being carried out. If you have a system that nobody knows about, or cares about, the system is useless and any defence is likely to fail.
The RoHS regulations do not describe in any detail what systems will satisfy the defence. To establish this point you need to examine the past decisions of the courts in other legislation and draw upon that experience. However, before you can set up any systems you need to know what you can and cannot do. Once you know what is prohibited you can build your defences.