On Friday, Dame Victoria Sharp, President of the Queen's Bench Division, approved a Deferred Prosecution Agreement (DPA) between the Serious Fraud Office and Airbus SE. Under the terms of the DPA, Airbus SE agreed to pay a fine and costs totalling €991m as part of a €3.6bn global resolution for bribery offences.
The indictment, suspended for the term of the DPA until 31 January 2023, covers five counts of failure to prevent bribery under section 7 of the Bribery Act 2010. The conduct involved Airbus’ Commercial and Defence & Space divisions and took place across five jurisdictions: Sri Lanka, Malaysia, Indonesia, Taiwan and Ghana between 2011 and 2015.
Dame Sharp noted in her judgment that Airbus SE could have moved more quickly in reporting concerns to the SFO. However, she remarked that once the SFO was engaged, Airbus SE cooperated with the investigation to the fullest possible extent and its new leadership put in place a programme of corporate reform and compliance. Particular regard was given to the co-operation of Airbus SE by Dame Sharp when considering the public interest factors against prosecution: "…public interest factors against prosecution clearly outweigh those tending in favour of prosecution…Airbus has … truly turned out its pockets and is now a changed company."
Regarding privilege, it was noted that Airbus SE adopted a co-operative position and provided a schedule of contemporaneous documents withheld on the basis of privilege, including the reasons for asserting privilege, which were then verified by the SFO.
It was also noted that Airbus SE, a French and Dutch domiciled company, accepted that the Bribery Act provided the SFO with extended extraterritorial powers in respect of conduct which had taken place almost exclusively overseas. Dame Sharp stated that this was an exemplary step.
The SFO did not recommend the appointment of a monitor as part of the DPA due to the remedial steps taken by the Board and the appointment of the Agence Française Anticorruption as a term under the French Judicial Public Interest Agreement. This is particularly interesting as the SFO's 'Evaluating Compliance Programs', published earlier this year, explains that a DPA which includes terms about an organisation's compliance programme is likely to include the appointment of a monitor. Whilst in this DPA a monitor was not appointed due to matter specific circumstances, appointment was nonetheless considered, signalling that this will likely be a focus of the SFO going forward.
The SFO's statement on the DPA can be found here.
