The role of immunity as a prosecutorial tool in criminal cartel
offences in the United Kingdom and Australia
Introduction
A prohibition on agreements, arrangements or understandings or
other forms of collusive behaviour between competitors involving
price fixing, market sharing, output restrictions and tender or bid
rigging (cartel conduct) is a staple of
competition regulation across the globe. Criminalisation of cartel
conduct, however, is not yet universal, and inevitably provokes
debate about the application of criminal law principles to what
some regard as a somewhat less reprehensible "economic"
crime.
That debate has been aired in connection with the standard of
dishonesty as it applies to the cartel offence under section 188 of
the United Kingdom's Enterprise Act 2002. In his paper
"How Dishonesty Killed the Cartel
Offence"1, Dr Andreas Stephan argues
convincingly that, if not dead, the UK cartel offence in its
current form is seriously ill and perhaps
