A Common Defence in Coal Prosecutions
| Published date | 01 July 1948 |
| Date | 01 July 1948 |
| DOI | http://doi.org/10.1177/002201834801200310 |
| Subject Matter | A Common Defence in Coal Prosecutions |
ACommon Defence in Coal Prosecutions
T
HE
Weights
and
Measures Acts make
it
all too easy for
the
owner of a retail business to fall foul of
the
law.
It
is rarely necessary to prove mens rea in order
to
establish a
case against him,
and
the
most scrupulous of employers is
liable to find himself convicted
by
acriminal court on
account of
the
neglect or misconduct of one of his employees.
Section 12 (5) of
the
Sale of
Food
(Weights
and
Measures)
Act, 1926, however, affords
him
some relief.
"12 (5) Where
an
employer or principal is charged
with
an
offence against this Act, he shall be entitled on information
duly
laid
by him,
and
on giving
not
less
than
three
days' notice of his
intention
to
the
prosecution, to
have
any
other
person whom he charges as
the
actual
offender
brought
before
the
court
at
the
time
appointed
for hearing
the
charge,
and
if,
after
the
commission of
the
offence
has
been proved,
the
employer or principal proves to
the
satisfaction
of
the
court that he had used due diligence to enforce
the
execution of
this
Act, and that the said other person had committed the offence
in
question
without
his consent, connivance or wilful default,
the
said
other person shall be summarily convicted of
the
offence
and
the
employer or principal shall be
exempt
from
any
penalty
:
"Provided
that
the
prosecution shall
have
in
any
such case
the
right
to cross-examine
the
employer or principal if he gives evidence,
and
any
witnesses called by him in
support
of his charge
and
to call
rebutting
evidence.
"The
person so convicted shall, in
the
discretion of
the
Court,
be also liable to
pay
any
costs incidental to
the
proceedings".
This section,
at
first glance, enables
the
employer, on
proving
that
the
offence was due to
the
fault of an employee
and
that
he personally was
not
to
blame,
to
exempt
himself
from
penalty
and
secure
that
the
actual offender should be
punished.
But
asingular technical difficulty arises in
the
applic-
ation of
the
section.
The
employer
must
prove
not
that
the
employee is, in a colloquial sense,
the
actual
offender,
but
that
he has
"committed
the
offence in
question".
If
this is
to
be construed strictly
it
must
mean
that
the
sub-
323
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