On the 21 November a meeting of the Bingham Centre for the Rule of Law discussed the proposed reform of the criminal cartel offence in section 188 of the Enterprise Act 2002. Key to the proposed amendments is the suggestion to remove the word 'dishonesty' in respect to an agreement to make or implement cartel arrangements. The merit of this omission was discussed at length. In particular, the question of whether such an omission could result in a finding of culpability against innocent individuals. This issue was analysed against a backdrop of general criminal law and the various elements of crimes requiring mens rea and strict liability offences.
From there, the discussion moved to an analysis of several key terms, such as 'agree', 'conceal' and 'intent', and the question whether omitting the word 'dishonesty' simply resulted in ambiguities was considered. The dialogue also considered whether the proposed removal would result in an offence with a wider catchment area, and thus result in a chilling effect on business development.
Finally, it was considered whether the defence of consultation with a legal professional prior to making or implementing any arrangements that might be caught by the offence would be an adequate prophylactic in situations where such advice counselled against the proposed action or presented an unclear picture of the legal situation.
Overall, the discussion was an analysis of whether the Bill sufficiently provides rule of law protection to individuals who might come within its purview. It was felt that perhaps the best way forward would be to think more clearly about the impact of removing the dishonesty requirement, on the remainder of the cartel offence provisions. Ultimately, the goal should be clarity and legal certainty.