Competition advisers warn regulator must learn from attempt at prosecution

"Those responsible for conducting criminal prosecutions within the Office of Fair Trading (OFT) have in this instance been guilty of incompetence on a monumental scale." The words expressed by defence counsel Ben Emmerson QC, albeit quickly retracted, give some indication of the sentiments in the legal community in reaction to the OFT's decision to drop its much-touted criminal trial against four present and past British Airways (BA) executives last week.

The trial was the culmination of a series of investigations by the OFT into price-fixing of fuel surcharges since 2006, after industry rival Virgin turned whistleblower. However, the watchdog abandoned the case after Virgin, which has immunity from the OFT, revealed approximately 70,000 emails suggesting the airlines had decided to increase fuel surcharges before speaking to each other. As a result, former BA commercial director Martin George, former head of UK and Ireland sales Alan Burnett, ex-communications head Iain Burns and current sales and marketing director Andrew Crawley were acquitted just weeks into a planned six-month trial. Had they been found guilty they could have served five-year jail sentences.

The OFT had a lot riding on this trial as the first contested criminal case to be carried out since the regulator gained greater power under the Enterprise Act 2002. All eyes were on the watchdog to send a clear message about its willingness to enforce competition policy. On this level the case has been a major reverse. Where did it go wrong? One City competition partner argues that the OFT simply lacked the sophistication to mount a major criminal prosecution, a sentiment shared by many lawyers.

Competition partners have also criticised the watchdog for relying too heavily on Virgin and its advisers Herbert Smith for evidence and document review processes. This is not surprising given the OFT's limited resources; it currently employs just two criminal lawyers. Others say the OFT must become more experienced in evidence standards for criminal cases where there is a higher burden of proof. So where does the watchdog go from here? The key question for many is whether the OFT will now shy away from criminal proceedings or make conspicuous efforts to get back on the horse from which it has been so publicly thrown. The OFT's assertion following the collapse of the case that it is to hire two experienced investigators and criminal lawyers suggests it is currently leaning towards the latter course. Indeed, most competition specialists see no reversal in the current policy of more robust enforcement.

In addition, the OFT has stated that it will review whether Virgin gave enough co-operation during the trial to keep enjoying full immunity. Taking a hard line on Virgin might be necessary to limit the damage with BA, which is now apparently questioning whether to pay the £121.5m civil settlement agreed with the OFT last year, and competition lawyers are now warning that clients will be less inclined to admit culpability in civil settlements.

Whatever its embarrassment over the case, the OFT is too committed now to do anything other than keep pressing onwards. As DLA Piper head of competition and trade Mike Pullen says: "If the OFT has reason to believe criminal activity has taken place then it has a duty, like other regulators, to pursue it."