The news broke yesterday that the first fully contest trial in relation to the ‘old’ UK cartel offence results in both defendants being acquitted after the jury deliberated for “only a couple of hours”. As the ‘old’ cartel offence is no longer with us, being substantially amended in ERRA 2013, the wider impact of the acquittal might be perceived as being limited, but there are still lessons to be learned from what we know about the acquittal.
The mainstream UK news media has today been gleefully reporting the large fines imposed by the Bundeskartellamt in the German Sausage cartel. What struck me as interesting is why that cartel, above so many others has broken out of the financial press and made the headlines?
Prof Cosmo Graham, from the University of Leicester, just posed me that very interesting question.
The #OpCotton ruling yesterday stayed a large City fraud prosecution because the defendants could not find Counsel willing to represent them at the reduced VHCC (Very High Cost Cases) rates now offered in Legal Aid cases. Many, see for instance David Allen Green in the FT and Alan Wagner in the New Statesman, have pointed out this may mean that VHCC cases are effectively unprosecutable in the UK. I don’t know if a Cartel Offence prosecution would normally fall into this VHCC class.
What is the impact of the ‘legal advice’ defence to the cartel offence in s 188B(3) of the 2002 Act? Could it make it easy to escape prosecution?
This week I delivered my UG competition law lecture on Cartels. It’s an occasion I always enjoy and gives me an opportunity to approach the topic afresh on an annual basis [the feedback I receive is always extremely helpful too]. This year it was the first time that I had the opportunity to talk through the new defences to the UK cartel offence since the controversial ‘dishonesty’ element was removed by the Enterprise and Regulatory Reform Act 2013. I have described one of the new defences inserted into the Enterprise Act 2002, the ‘legal advice’ defence in s 188B(3), as ‘bizarre’ in the new edition of our textbook, but in this post I want to set out what I perceive the problems to be. I want to develop these ideas into a longer piece, but for now I want to pose some of the questions I think need answering. My fear is that the ‘legal advice’ defence could become a get out of jail free card rendering the UK cartel a dead letter in all but the most extreme cases. Read More…