As we have previously commented, the SFO has previously failed to secure convictions against individuals in high-profile cases where companies have entered DPAs, raising questions about the level of scrutiny applied during the DPA process. If the SFO fails to secure convictions in this case, this will sharpen scrutiny on whether the SFO's DPA process is fit for purpose at all, particularly given the extraordinary levels of fines imposed with this DPA.
It is important to note that Airbus did have bribery policies and procedures in place. However, it is apparent that Airbus did not raise the statutory defence of having adequate procedures in place for the s.7 offences charged. It appears from the judgment in this case that any defence raised may not have succeeded, given that Airbus' anti-bribery and corruption (ABC) policies and procedures were found to have been easily bypassed with very senior members of the business being involved in the relevant criminality. So much so, Airbus was described as possessing a corporate culture that permitted bribery.
The Airbus DPA is a further illustration that an organisation's anti-bribery and corruption policies and procedures need to be sufficiently robust to give effect to their intended purpose and should be able to withstand scrutiny from third parties. It is not enough to have a comprehensive written policy in place with no action undertaken to combat bribery and corruption.
As a minimum, corporate policies and procedures designed to combat bribery and corruption should encompass the following:
- An organisation should have proportionate procedures to the bribery risks that it faces and to the nature, scale and complexity of the organisation's activities.
- The commitment to preventing bribery and corruption comes from the top-down i.e. the senior management of the commercial organisation oversee the ABC policies and procedures and are fostering a culture where bribery and corruption is not acceptable.
- The commercial organisation conducts appropriate risk assessments that assesses the nature and extent of its exposure to potential external and internal risks of bribery. Risk assessments are overseen by senior members of management who understand the risks to the business and are proactive in combating them.
- The commercial organisation applies due diligence procedures, taking a proportionate and risk based approach, in respect of persons, who perform or will perform services for or on behalf of the organisation, in order to mitigate identified bribery risks.
- The commercial organisation seeks to ensure its bribery prevention policies are communicated to its personnel.The commercial organisation monitors and reviews procedures designed to prevent bribery by persons associated with it and makes improvements where necessary.
The Corporate Crime and Investigations Team at Fieldfisher have expertise in advising businesses in relation to their ABC policies and procedures and encourage a proactive rather than reactive approach in ensuring that corporates have adequate procedures in place. Please contact Tony Lewis, Kyle Phillips or Elliott Kenton if you have any queries in relation to your ABC practices.
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