David Corker advocates removing the dishonesty element from the criminal cartel offence
On 15 March 2012, the department for business, innovation and skills (BIS) published its plans for an overhaul of the UK’s competition laws and enforcement arrangements. One aspect of these plans concerns the reform of the criminal cartel offence created by s 188 of the Enterprise Act 2002. The key proposal is to remove the dishonesty element, so that the offence would be committed by those who agree to price-fix, bid-rig or limit supply with another without revealing this to the public.
A matter of persuasion
BIS has plainly been persuaded by the Office of Fair Trading (OFT), the agency responsible for the investigation and prosecution of this offence, that the inclusion of dishonesty has made the successful prosecution of alleged cartellists almost impossible. According to the OFT, this is the reason why there have only been two prosecutions in respect of the offence since it was introduced–despite the fact that its investigations have uncovered a plethora of instances of “hard-core” cartels. Moreover, in many of those instances
