All posts in the Criminal cartel offence category
Removing the dishonesty element from the criminal cartel offence – not such a bad idea after all?
On 15 March 2012 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, s188 of the Enterprise Act 2002. The key proposal is to remove the dishonesty criterion so that the offence would be committed by those who agreed to price-fix, bid-rig or limit supply with another participant (purportedly a competitor) without revealing this to the public. This proposal has been widely criticized by competition and criminal lawyers, who have denounced it for its apparent illiberality and injustice. Despite this opposition, I crawl out onto a narrow and perilous ledge of assent to what BIS wants to do.
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Negotiated justice – a light at the end of the tunnel for both sides?
The Solicitor General is conducting a preliminary consultation about the way in which an English version of Deferred Prosecution Agreements (DPA’s) might work. This is good news because such agreements do have a valuable role to play in law enforcement where investigation budgets are tight and it is also good news for companies who often need a way out of a costly and uncertain criminal investigation. But the debate must be fully informed. The public needs to know what is being contemplated.
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Proposed changes to criminal cartel offence – a good thing?
Are proposed changes to the criminal cartel offence a good thing? BIS published a consultation paper on 16 March 2011 containing its proposals for amending the criminal cartel offence introduced by the Enterprise Act 2003. The paper does not propose changing the status quo whereby only an individual, not a company, can commit the offence. At the moment, to obtain a conviction, the OFT must prove not only knowing participation in cartel conduct but also dishonest participation. The paper outlines four options for what should replace this dishonesty element.
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