Cap. 449 Art. 41Due diligence.

(1) Subject to the provisions of subarticle (5), in any proceedings for an offence against any of the preceding provisions of this Part or of any regulations issued in virtue of article 10, it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control.

(2) Without prejudice to the generality of subarticle (1), a person charged with an offence against article 14, or 17, or 18 who -

(a) has not prepared the food in respect of which the offence is alleged to have been committed; or

(b) has not imported it into Malta, shall be taken to have established the defence provided by that subarticle if he satisfies the requirements of subarticle (3).

(3) A person shall be deemed to satisfy the requirements of this subarticle if he proves -

(a) that the commission of the offence was due to an act or default of another person who was not under his control, or to reliance on information supplied by another person;

(b) that he carried out all necessary checks on the food in question as were reasonable, in all the circumstances, and that it was reasonable in the circumstances for him to rely on checks carried out by the person who supplied the food to him;

(c) that the sale or intended sale of which the alleged offence consisted was not a sale or intended sale under his name or mark; and

(d) that he did not know, and had no reason to suspect at the time of the commission of the alleged offence that his act or omission would amount to an offence against the relevant provision.

(4) The person charged shall not, without the leave of the court, be entitled to rely on the defence referred to in subarticle (3) if the defence involves the allegation that the commission of the offence was due to an act or default of another person, or to reliance on information supplied by another person, unless, after the reading of the charge in court and not later than twenty-four hours thereafter, he files a notice in court to be served on the prosecutor containing such information identifying or assisting in the identification of that other person as was then in his possession.

(5) (a) In proceedings for an offence against any of the preceding provisions of this Part, relating to the advertisement for sale of any food, it shall be a defence for the person charged to prove -

(i) that he is a person whose business it is to publish or arrange for the publication of advertisements; and

(ii) that he received the advertisement in the ordinary course of business and that, notwithstanding that he complied with any guidelines made under paragraph (b), he did not know and had no reason to suspect that its publication would amount to an offence against that provision.

(b) The Minister may by regulations make provision for the issue and supply of guidelines for persons engaged in the business referred to in paragraph (a), and in particular for the avoidance of the publication of advertisements not in conformity with this Act.