The Removal of Dishonesty from the Cartel Offence and the Publication Defence: A Panacea?

Ruchit Patel, May 14, 2012

In March 2011, the U.K. Government Department for Business, Innovation and Skills (“BIS”) consulted upon proposed reforms to the U.K. competition regime. The reforms proposed in the Consultation generated a great deal of interest primarily because certain of them had the potential to represent a step change in the regime (e.g., one of the proposals was to change to a prosecutorial model of antitrust enforcement). Following the Consultation, BIS decided to progress a more modest set of reforms (e.g., BIS chose to retain the administrative model of antitrust enforcement). Even the most high-profile reform, the merger of the Office of Fair Trading (“OFT”) and the Competition Commission into a single Competition and Markets Authority (“CMA”), is unlikely to change much in practice, given that it will ostensibly be structured so as to ensure no change to the fundamental way in which decisions are made.

While little may have changed for businesses, the Government’s reforms could have more significant repercussions for individuals. The removal of the dishonesty element from Section 188 of the Enterprise Act 2002 (the “cartel offense”) has the potential significantly to change the nature of the criminal cartel regime because it seems to lower the threshold for a successful conviction. This article examines the basis for reform, analyzes whether the decisions adopted in BIS’s Response are likely to have their desired impact, and considers a possible alternative for legislation.

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