David Corker considers the implications of ditching dishonesty from the criminal cartel offence
On 1 April s 47 of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) was implemented. This section reforms the criminal cartel offence which was created by s 188 of the Enterprise Act 2002 (EA 2002). By far the most important change wrought by s 47 is the removal of the need to prove dishonesty. Accordingly, this offence becomes a more conduct-based one; did the suspect or accused agree with others to enter into a cartel whose purpose was to eg price-fix or bid rig? EA 2002’s definition of the four types of proscribed cartel agreements to which the offence applies is unchanged by ERRA 2013. These four types are said to be “hardcore cartels”. The Office of Fair Trading (OFT) has contended that they constitute the most egregious forms of anti-competitive behaviour.
Deleting dishonesty
Dishonesty was included in the original definition of the offence as it was said to provide the means of dividing the UK’s civil and criminal competition enforcement regimes. Second, it effected a clear separation between
