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Amec Foster Wheeler / Wood Group – In The Words Of Lord Justice Edis

Edis

If a country is to have a deferred prosecution agreement regime, the approach of the United Kingdom is far more preferable than the approach of the United States.

In the U.K. (unlike the U.S.), the judiciary is actively involved in the DPA process and the public is offered insight into the reasoning of the judge in approving the DPA (which often includes facts and information not mentioned in the resolution documents authored by the prosecutors).

Simply put, it is refreshing to hear from someone other than the prosecutors and this posts summarizes the judgment and reasoning of Lord Justice Andrew Edis in the recent U.K. portion of the enforcement action against Amec Foster Wheeler / John Wood Group. (see here for the prior post).

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The U.K. Deferred Prosecution Agreement Regime: Aligning Rhetoric And Reality

SFO2

A guest post from David Corker (a Partner at Corker Binning Corker in London).

The cornerstone of the Deferred Prosecution Agreement (‘DPA’) regime in our jurisdiction is the centrality of the court. At the start of both his preliminary and final judgments delivered in the first DPA in 2015, Leveson P intended that his affirmation of this principle would become, as indeed it has, axiomatic. Almost every subsequent judgment endorsing a DPA has recited his words about the indispensable judicial role. Opening her 32-page judgment concerning the Airbus DPA in 2020[1], for example, Sharp P (Sir Brian’s successor as head of the Queen’s Bench Division) reproduced (paras 7 and 8) the relevant passages in full.

For this article this extract provides sufficient colour:

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Friday Roundup

Roundup

Acquitted, scrutiny alert, under scrutiny again, across the pond, and compassionate release. It’s all here in the Friday roundup.

Acquittals

The so-called conventional wisdom in the U.S. is that business organizations under Foreign Corrupt Practices Act scrutiny (particularly publicly-traded corporations) simply can’t put the DOJ (or SEC for that matter) to its burden of proof in an enforcement action because it is too risky and may result in a “death sentence” for the company.

As highlighted in this post, the conventional wisdom is b.s., but the narrative still persists. In other countries however, corporations more frequently put government enforcement agencies to their burdens of proof by making factual and legal arguments.

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UK Supreme Court Rules That SFO Cannot Require Foreign Companies To Produce Documents Held Overseas

Judicial Decision

[A guest post from Debevoise & Plimpton attorneys Karolos Seeger, Jane Shvets, Robin Loof, Thomas Jenkins and Andrew Lee]

On February 5th, the UK Supreme Court handed down a highly-anticipated judgment, holding that the Serious Fraud Office (“SFO”) cannot issue a notice (a “section 2 Notice”) under s2(3) of the Criminal Justice Act 1987 (“CJA”) requiring a foreign company with no UK presence to produce material. Basing its decision on international comity, the construction of the CJA and subsequent legislative developments, including the adoption of mutual legal assistance agreements, the UK Supreme Court confined the use of section 2 Notices to UK companies and (possibly) foreign companies established or carrying on business in the UK.

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Potpourri

Potpourri

Commercial Bribery

The United Kingdom Bribery Act is a more comprehensive statute than the Foreign Corrupt Practices Act. Unlike the FCPA’s anti-bribery provisions which has a required “foreign official” element, the U.K. Bribery Act – including its so-called Section 7 “failure to prevent bribery” offense – is capable of capturing commercial bribery as well.

Last week the United Kingdom Serious Fraud Office announced a Deferred Prosecution Agreement with Airline Services Limited (ASL) “for three counts of failing to prevent bribery arising from the company’s use of an agent to win three contracts … to refit commercial airliners for Lufthansa.”

According to the DPA, “at the time [between 2011 and 2013], notwithstanding the recent passing of the Bribery Act, ASL had made negligible efforts to educate its staff or to introduce processes to identify and counteract occasions of bribery.”

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