On the 27th January 2014, the Office of Fair Trading (OFT) announced that Peter Nigel Snee had appeared at Westminster Magistrates Court facing a charge under section 188 of the Enterprise Act 2002, commonly known as the “cartel offence”.
It is alleged that Mr Snee dishonestly agreed with others to divide customers, fix prices and rig bids between 2004 and 2012 in respect of the UK supply of galvanised steel tanks for storage.
The last time that the OFT attempted to prosecute individuals under section 188 was the infamous BA executives case in 2010. As is well documented now, that case collapsed on the 10th May 2010 before the defence was required to put forward their case, after the discovery of a large amount of electronic evidence not previously seen by the defendants, or indeed the OFT. The case and its failings were looked at in the Project Condor Board Review which concluded, amongst other things, that “[c]ases under the criminal cartel regime raise many legal and practical challenges and thus a proportion will inevitably fail”. The review identified a number of specific failings of the OFT in relation to the choice of case, its management and the manner in which the leniency applicants and their evidence were handled, as well as a number of “unusual circumstances” in respect to this particular case.
Shortly after this the Government consulted on a number of reforms to competition law including the removal of dishonesty as the substantive test for the cartel offence. Dishonesty was regarded as one of the legal complications preventing successful prosecution. Following this consultation, an amended cartel offence was passed in the Enterprise and Regulatory Reform Act 2013 (ERR) which removed dishonesty and articulated ways in which the offence would not be committed as well as stipulating specific defences to the crime. The amended offence is due to come into effect in April 2014, which is also when the newly formed Competition and Markets Authority (CMA) takes over responsibility for the investigation and enforcement of the offence.
The timing of the prosecution of Mr Snee may seem unusual given that it is mere months before section 188A is due to come into force. However, given that section 47(8) ERR stipulates that section 188 will continue to be applicable to agreements that are already in existence when section 188A comes in to force, or indeed pre-exist it. Section 188A therefore will only be applicable to agreements made after the commencement of the amended offence and, which relate to arrangements made after its coming into force.
It is often the case that the OFT only becomes aware of a prohibited hard-core agreement after it has been in operation for a number of years, or has in fact already come to an end. Therefore, it is unlikely that prosecutions by virtue of section 188A will occur in the near future. It is crucial then that the OFT and then the CMA, continue to pursue and punish cartel arrangements under the original offence. One of the major failings of section 188 was the fact that it had been so rarely invoked. This resulted in its deterrent effect being seriously compromised. If the OFT and then the CMA wait to prosecute cartels criminally until they find agreements which fall within the scope of section 188A, that deterrent effect, along with the credibility of the regulator, will be further damaged.
The success of this prosecution is therefore vital; another failing and the damage to both the deterrent effect of the offence and the reputation of the regulator will be severe. If successful, it will provide a much needed boost in the perception of the effectiveness of the offence and the OFT. A successful prosecution may also provide judicial precedent on the sentencing of this type of offender, precedent that is much needed in the absence of official sentencing guidelines. Although whether the amended section 188A offence will be regarded in the same light as the original section 188 offence by the judiciary given the lack of the aggravating feature that is dishonesty, will be a hard question to answer due to the lack of any unadulterated case law with which to compare it. It’s usefulness as future authority is not inherently clear.