On 20 June 2003 s.188 of the Enterprise Act 2002 [the Act] came into force making it an offence for a person (but not a company) dishonestly to agree “with one or more other persons to make or implement, or cause to be made or implemented, arrangements…relating to at least two undertakings (A and B)” that include ones which would “directly or indirectly fix a price for the supply by A in the UK (otherwise than to B) of a product or service” [the cartel offences].
In the eight intervening years, the Office of Fair Trading [the OFT] has brought only two prosecutions: R v Whittle  EWCA Crim 2560, arising out of the Marine Hoses cartel and firmly cemented in a plea bargain agreement concluded in the USA, and Regina v Martin George and Others, arising out of the BA/Virgin fuel cartel, which shuddered to a halt on 10 May 2010 when the OFT offered no evidence. The OFT website indicates that it is currently conducting three investigations into cartel activity in the automotive sector, the agricultural sector and the commercial vehicle manufacturing sector.
The government is concerned that the aggressive approach in the Act to cartel activity, trumpeted on 10 April 2002 by Patricia Hewitt, the then Secretary of State for Trade and Industry, viz. that it would be an offence that “will send out a strong message to the perpetrators, their colleagues in business, the general public and the courts”2 is in reality a lame duck. There is concern that the requirement on the prosecutor to prove that the cartel was dishonest, as opposed to the strict liability offence favoured in America, Canada, Australia and in some other countries, is too difficult to prove.