Whilst the OFT has suffered considerable criticism for its failures in prosecuting criminal cartel cases under Part 6 of the Enterprise Act 2002, it has been quietly developing its criminal prosecution track record in what might be seen as the less glamorous (but nonetheless important) field of consumer protection. It was also active over the summer in support of a separate police investigation in tackling the unlawful sale of Olympic tickets; obtaining court orders to force overseas firms to take down websites and cease selling unauthorised tickets. Whilst the OFT’s jurisdiction in consumer enforcement matters under Part 8 of the Enterprise Act is civil rather than criminal, there are signs that the OFT is stepping up the deterrent effect of its enforcement work by mounting a small number of prosecutions under the Fraud Act and consumer protection regulations.
In October the OFT has two cases in magistrates courts. One relates to the prosecution of estate agents for offences under the Fraud Act 2006 for alleged fraud connected to property sales and another concerns mileage alteration by a person in the motor trade. Another longer running criminal case concerns criminal conduct concerning a pyramid scheme which is still to be finally concluded at Bristol Crown Court.
So the OFT is not quite as toothless as it may have appeared in recent years and newly appointed staff with significant criminal prosecution experience are starting to make their mark. Nevertheless, a criminal cartel case is still very unlikely while dishonesty remains an element of the offence although the OFT is said to have at least two cartel investigations in progress. We are not yet seeing the OFT engaging in the kind of “credible deterrence” strategy practised by the FSA in recent years but perhaps there is more to come for estate agents, credit providers and others at risk of OFT enforcement action.