Cartel Defence

Section 188 of the Enterprise Act 2002, which came into force on 20 June 2003, created for the first time a specific criminal offence of cartel behaviour, which includes price fixing, limiting supplies or production, bid-rigging and market-sharing arrangements.  The cartel offence carries a maximum sentence of five years' imprisonment and the UK has recently seen its first convictions for this offence.  The risk of personal criminal liability for directors and employees involved in cartel behaviour now means it is vital that specialist, and independent, criminal law advice is obtained at the very earliest opportunity.

This is particularly so as the Enterprise Act also contains the first statutory leniency programme to be introduced into the law of England and Wales.  It confers on the Office of Fair Trading (the "OFT") the power to grant criminal immunity to individuals and civil immunity to companies and to extend "leniency" to companies and individuals "for the purposes of the investigation or prosecution of offences".  These provisions are designed to encourage individuals and/or companies involved in cartel behaviour to approach the OFT at the earliest opportunity to offer co-operation and assistance in return for immunity or leniency.

As one of the recognised leaders in the field of business crime, our experience gained over many years in most of the major business crime cases means that we are well-placed to deal with the new world of OFT criminal investigations.

Many cartels will also have an international element with investigations pursued in more than one country.  The anti-trust division of the United States Department of Justice is particularly prominent in leading the global fight against anti-competitive behaviour and will show little reluctance to seek the extradition to the US of those involved in cartel behaviour.  It is, therefore, also vital that appropriate foreign law and extradition advice is obtained and that lawyers in the various jurisdictions liaise to ensure that a co-ordinated and appropriate strategy is adopted.  Our cartel defence practice, and our wider business crime and regulation practice, frequently involves an international dimension and we are experienced in extradition matters and in working with and co-ordinating teams of foreign lawyers.