The OFT has abandoned its criminal prosecution of 3 former and 1 current BA executive under section 188 Enterprise Act 2002 (the cartel offence) for their part in a fuel surcharge cartel. The proceedings were withdrawn by the OFT, after the trial had already begun, following the discovery of a substantial volume of electronic material of which the OFT was not previously aware and which the defendants had not been given the opportunity to review. This material had been omitted from the material that Virgin had provided to the OFT under its obligation, in accordance with its application for immunity from penalties, to provide continuous and complete cooperation.

Although the OFT stated that almost all of the new material was of no relevance to any of the issues in the case, the OFT nevertheless withdrew these proceedings as it was of the view, given the volume of material, that to continue with the trial would potentially be unfair to the defendants. However, the OFT in a press release, stood by its decision to bring the proceedings, its decision to withdraw being based solely on procedural and disclosure grounds and not on an assessment of the evidence or prospect of success. The OFT has acknowledged some responsibility, stating that it occurred at a time when the UK criminal cartel regime was relatively new and the OFT’s approach to handling leniency applications in the context of parallel criminal and civil investigations was still evolving. The OFT has stated that it has improved this process going forwards by providing detailed internal guidance on criminal procedures and making a number of appointments to strengthen its criminal investigation and prosecution functions.

Although no formal decisions have been made yet, the OFT has hinted that it may review the role played by Virgin and its advisers in the omission of the relevant material. Virgin blew the whistle on the fuel charge cartel and was granted full immunity from penalties. In respect of this leniency, Virgin was obliged to provide full cooperation. The apparent failure to provide full information may impact on Virgin’s immunity from penalties. The OFT has confirmed that no adverse decision affecting Virgin’s immunity status will be made without first providing Virgin with an opportunity to make representations