DPA Update: Airline Services Limited
In a judgement handed down at Southwark Crown Court on 30 October 2020, May J approved the terms of a Deferred Prosecution Agreement (“DPA”) made between the Director of the Serious Fraud Office (“SFO”) and Airline Services Limited (“ASL”).[1]
This is the third DPA this year, following the approval of DPAs with Airbus in January[2] and G4S Care and Justice Services (UK) Limited in July.[3]
The criminality which forms the basis of the DPA concerned a series of bribes paid to secure contracts between 2011 and 2013. The wrongdoing came to light following an internal investigation into other matters in 2015 which resulted in ASL self-reporting to the SFO.
The Facts underlying the DPA
ASL is a UK company founded in 1984. Its business includes the provision of services for airlines, including the manufacture and adaptation of parts for the interior of aircrafts.
In order to procure contracts with airlines, ASL’s sales team hired agents. Those agents received commission based upon the price of the contracts secured.
The indictment which led to the DPA being approved concerned the activity of one agent (anonymised as “Agent 1” in the judgement) and agreements for the provision of services between ASL and Deutsche Lufthansa AG and its subsidiary Lufthansa Technik AG (“Lufthansa”).
In October 2011, ASL signed an agreement with Agent 1 to secure business with Lufthansa. At the same time as acting for ASL, Agent 1 was retained by Lufthansa as a consultant and later as an employee. Agent 1 worked on Lufthansa’s invitation to tender documents before they were sent out, and made recommendations regarding the bids that came in.
During the period of the indictment, ASL entered into four agreements with Lufthansa in relation to different projects. In respect of three of those agreements, ASL made payments to Agent 1. Agent 1 assisted ASL to secure the agreements by providing confidential information. Each of the three agreements, together with the role played by Agent 1 in relation to them, gave rise to a charge against ASL of failing to prevent bribery contrary to section 7 of the Bribery Act 2010.
The Approval of the DPA
The Interests of Justice
By paragraph 8(1)(a) of Schedule 17 of the Crime and Courts Act 2013 (“the 2013 Act”), where the terms of a DPA have been agreed, the prosecutor must apply to the Crown Court for a declaration that the DPA is “in the interests of justice”.[4] The DPA Code of Practice gives guidance on the general principles to be applied in determining whether a DPA is likely to be appropriate in any given case.[5]
May J acknowledged that ASL’s offending behaviour was “egregious”, took place over a sustained period of time and was repeated over three separate agreements.[6] During the period covered by the indictment, the Court found that ASL’s compliance procedures were “woefully inadequate”.[7]
Notwithstanding those factors, May J concluded that the public interest lay against proceeding with a prosecution. Approval of the terms of the DPA was therefore in the interests of justice. In reaching that conclusion, May J emphasised the following factors.
First, the manner in which ASL conducted itself once it uncovered the offending behaviour. ASL had self-reported and provided full cooperation to the SFO. This consideration weighed heavily in the balance in view of the core purpose of the creation of DPAs which was to “incentivise the exposure and self-report of corporate wrongdoing”.[8]
Second, the active business divisions of ASL had been sold by the time the DPA came to be approved. There was therefore no possibility of the offences being repeated. May J considered it “particularly telling” when considering where the public interest lay that the remaining corporate shell of ASL was being maintained solely for the purposes of discharging its obligations under the DPA. Interestingly, May J drew attention to the fact that the DPP’s “Guidance on Corporate Prosecutions” gives as an additional factor weighing against prosecution the fact that the company is in the process of being wound up.[9]
Fair, Reasonable and Proportionate
The Court was required by paragraph 8(1)(b) to consider whether the terms of the DPA are “fair, reasonable and proportionate”.
The Court approved a duration of one year for the DPA and a requirement that ASL give reasonable assistance to the SFO, including keeping the material gathered during its own and the SFO’s investigation. This requirement is to assist in any investigations or prosecution of the individuals concerned in the offending. ASL was required to pay £990,971.45 as a disgorgement of the profits resulting from the agreements with Lufthansa and £750,000 in SFO costs. In addition, the terms of the DPA included a financial penalty of £1,238,714.31. The financial penalty should be comparable to a fine imposed following a guilty plea, and therefore subject to a one third reduction.[10] In R v Sarclad [2016] 7 WLUK 211, Leveson LJ indicated that a further discount may be appropriate in the case of DPAs since the admissions are “far in advance of the first reasonable opportunity having been charged and brought before the court”.[11] As in Sarclad, May J applied a 50% discount.
Commentary
The judgement in ASL highlights once again the paramount importance of both prompt reporting of corporate wrong-doing and full co-operation with the SFO if corporate bodies wish to avoid prosecution and mitigate any financial penalty. ASL’s offending behaviour was “egregious” but the public interest still lay against a prosecution because of the company’s co-operation and self-reporting.
The agreement with Airline Services marks another success for the SFO in their use of DPAs. But DPAs were introduced to run together with criminal prosecutions of individuals. Where a DPA is concluded, the material provided may be used in subsequent criminal proceedings against individuals implicated in the wrongdoing which is the subject to the DPA. To date, no successful prosecutions have been brought following the conclusion of a DPA and in that respect the DPAs are yet to prove a success.
[1] The Judgement, together with a the Full Statement of Facts and the signed DPA can be found here: https://www.sfo.gov.uk/download/airline-services-limited-deferred-prosecution-agreement/
[2] file:///Users/redmond/Downloads/R%20v%20Airbus%20Approved%20Judgment.pdf
[3] https://www.judiciary.uk/wp-content/uploads/2020/07/SFO-v-G4S-Judgment.pdf
[4] https://www.legislation.gov.uk/ukpga/2013/22/schedule/17/enacted
[6] SFO v Airline Services Limited [2020] at [52].
[7] SFO v Airline Services Limited [2020] at [37].
[8] SFO v Airline Services Limited [2020] at [52].
[9] SFO v Airline Services Limited [2020] at [53]. The Legal Guidance on Corporate Prosecutions can be found here: Corporate Prosecutions | The Crown Prosecution Service (cps.gov.uk). The DPA Code of Practice refers to the Corporate Prosecution Guidance at paragraph 2.10 of the DPA Code.
[10] Paragraph 5(4) Schedule 17 of the 2013 Act.
[11] SFO v Sarclad [2016] at [69].
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