Section 238 — Defence of due diligence and innocent publication

(1) It is a defence for a person (“the defendant”) charged with an offence under subsection (1), (2), (3), (6) or (7) of section 237 to prove—

(a) that the commission of the offence was due to—

(i) the act or omission of another person,

(ii) reliance on information given by another person,

(iii) a mistake or accident, or

(iv) another cause beyond the defendant’s control, and

(b) that the defendant took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by the defendant or any other person under the defendant’s control.

(2) Subsection (3) applies in a case where a person (“the defendant”) has been charged with an offence under subsection (1), (2), (3), (6) or (7) of section 237 alleged to have been committed by the publication of an advertisement.

(3) It is a defence for the defendant to prove that—

(a) the defendant’s business is to publish or arrange for the publication of advertisements,

(b) the defendant received the advertisement for publication in the ordinary course of business, and

(c) the defendant did not know and had no reason to suspect that its publication would amount to the offence with which the defendant is charged.

(4) A defendant is not entitled to rely on the defence provided by subsection (1) by reason of the matters referred to in paragraph (a)(i) or (a)(ii) of that subsection without the permission of the court unless—

(a) the defendant has served on the prosecutor a notice in writing giving such information as was then in the defendant’s possession identifying, or assisting in the identification of, the other person, and

(b) the notice is served on the prosecutor at least seven clear days before the hearing of the proceedings or, in Scotland, at least seven clear days before the trial diet.

(5) In subsection (3), “advertisement”—

(a) means anything published (in any form) for the purpose of promoting a product to the public or a section of the public, and

(b) includes a catalogue, a circular and a price list.