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Amec Foster Wheeler Energy Limited enter into Deferred Prosecution Agreement with the Serious Fraud Office totalling £103 million4th October 2021 Business Crime
The Serious Fraud Office (SFO) have entered into Deferred Prosecution Agreement (DPA) with Amec Foster Wheeler Energy Limited (AFWEL), a UK-based global engineering company, in the sum of £103 million. The DPA, which relates to AFWEL using corrupt agents in the oil and gas sector, follows a four year investigation by the SFO. The three year agreement was formally approved on 1 July 2021, having previously been agreed in principle at a private hearing before Lord Justice Edis, sitting at the Royal Courts of Justice, on 25 June 2021.
In entering into the agreement, AFWEL has taken responsibility for ten offences of corruption across Nigeria, Saudia Arabia, Malaysia, India and Brazil, spanning the period 1996 to 2014. The offending relates to Foster Wheeler Energy Limited (FWEL), who were acquired by AFWEL in November 2004, using agents to pay bribes to foreign officials in order to secure oil and gas contracts, and to FWEL concealing the corrupt conduct.
The DPA represents one of a number of global resolutions in respect of AFWEL. The company have also entered into agreements in the US and Brazil, totalling US$177 million. The agreement with the SFO amounts to £103 million, and consists of the following:
- Financial penalty - £46,033,891.98
- Compensation payments to the people of Nigeria - £210,610.00
- Disgorgement of profits (representing the gain from the criminal conduct) - £47,815,914.15
- Contribution to the SFO’s costs of £3.4 million.
The DPA is accompanied by an undertaking from AFWEL’s parent company, John Wood Group PLC (Wood), in which Wood has agreed to pay the financial penalty and the SFO costs, and to report annually on its group wide ethics and compliance programme.
What is a Deferred Prosecution Agreement?
In summary, a DPA is an agreement reached between a prosecutor and an organisation which could be prosecuted. DPA’s allows a prosecution to be suspended for a defined period, provided the organisation meets certain specified conditions. Such conditions usually include paying a financial penalty, paying compensation and cooperating with future prosecutions of individuals.
Under a DPA, a company will be charged with a criminal offence. The proceedings are however automatically suspended if the agreement is approved by a Judge, who must be satisfied that the DPA is ‘in the interests of justice’ and that the terms are ‘fair, reasonable, and proportionate.’
The key benefit of a DPA is that it allows an organisation to make full reparation for criminal behaviour whilst avoiding a criminal conviction. They also avoid the need for a lengthy and costly trial.
DPA’s were introduced, under Schedule 17 of the Crime and Courts Act 2013, on 24 February 2014. Since their introduction, the SFO have entered into agreements with several large organisations, including Rolls-Royce, Tesco and Airbus.
The Link to Criminal Proceedings
If the company does not honour the conditions agreed to, the prosecution may resume. In such circumstances, the States of Facts prepared for the purpose of the DPA will be admissible evidence in Court.
The Prosecution of Associated Individuals
A DPA can only be made against an organisation, as opposed to an individual. That an organisation has entered into a DPA does not necessarily prevent the prosecuting authority from investigating and prosecuting an individual linked to the company, such as an employee or agent. Investigations are currently ongoing in respect of employees of FWEL. As such, the Statement of Facts provided in the AFWEL DPA proceedings, is covered by a reporting restriction and cannot be published.
If you or your organisation are being investigated or are in negotiations with a prosecuting body in relation to a deferred prosecution agreement, it is essential that you obtain legal representation at an early stage. For further information about the service that our solicitors can offer to you, the authors of this blog, Business Crime and Regulation partner, Sam Healey, and Solicitor, Sadie Thomson can be contacted on 0345 214 5305 or email@example.com.