In a somewhat defensive statement, the Competition and Markets Authority (CMA) confirm that two defendants were acquitted by a jury after a prosecution under section 188 of the Enterprise Act 2002. (CMA statement following completion of criminal cartel prosecution – News stories – GOV.UK.)
The CMA were keen to point out:
- That they had “applied the Code for Crown Prosecutors and discharged its duty as a prosecutor by bringing the case in front of a jury”.
- That, had the conduct occurred today, the defendants would probably have been convicted: “However, this case was brought under the law as it applied to conduct before April 2014, under which the cartel offence was only committed where the individuals concerned were dishonest. Following a change in the law, for conduct after 1 April 2014, it is no longer necessary for the CMA to prove individuals acted dishonestly to commit the cartel offence”.
The pre-April 2014 Enterprise Act was not a great success. It resulted in only one successful case, that concerning three UK businessmen in 2008, and was mortally wounded (along with the predecessor organisation the OFT) by the failure to secure any convictions in the BA/Virgin case in 2010.
Whether or not the removal of dishonesty as an element of the offence will make any difference will no doubt be revealed in time.
Practical Law David Bacon