Much ink has been spilled on the merits and effectiveness of the UK’s criminal cartel regime in the years since its introduction in 2003, but for many the jury had been out pending the results of the Office of Fair Trading’s (OFT) first contested criminal prosecution. Following the spectacular collapse of the first such trial, the BA/Virgin passenger fuel surcharges case involving four BA executives on 10 May 2010, the question arises as to what lessons that trial and the broader experience of the criminal regime to date have for the future of that regime and, in particular given the issues which arose in the case, of the interaction of criminal and civil cartel enforcement.
The OFT’s view as set out in its press release on 10 May 2010 was that the collapse of the case was the result of an ‘oversight, which occurred at a time when the UK criminal cartel regime was still relatively new and the OFT’s approach to the handling of leniency applications in the context of parallel criminal and civil investigations was still evolving’.
The OFT said that it had since improved its procedures and had made a number of appointments to strengthen its criminal investigation and prosecution functions with the implication being that oversights of this kind would be less likely to arise in the future. While the OFT acknowledged that the case raised issues about the relationship between leniency and criminal prosecutions and saw the need to ‘reflect further on [its] revised guidance and any other lessons arising from this case’, for example, the way in which the OFT interacts with leniency applicants and their advisers, the impression left by its press release was that in its view the failure of the case was the result of teething problems with the first test of the new regime and that in large part these problems had already been addressed.