Director of the Serious Fraud Office v Airbus SE
| Jurisdiction | England & Wales |
| Judge | The President of the Queen’s Bench Division (The Rt Hon Dame Victoria Sharp) |
| Judgment Date | 31 January 2020 |
| Subject Matter | Civil |
| Court | Crown Court |
Case No: U20200108
IN THE CROWN COURT AT SOUTHWARK
IN THE MATTER OF s.45 OF THE CRIME AND COURTS ACT 2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 31 January 2020
Before :
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(THE RT. HON. DAME VICTORIA SHARP)
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Between :
Director of the Serious Fraud Office
Applicant
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Airbus SE
Respondent
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James Lewis QC, Allison Clare, Katherine Buckle and Mohsin Zaidi (instructed by
the Serious Fraud Office) for the Applicant
Hugo Keith QC and Ben FitzGerald (instructed by Dechert LLP) for the Respondent
Hearing date: 31st of January 2020
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Approved Judgment
Approved Judgment SFO v Airbus SE
Dame Victoria Sharp P.:
Introduction
1. On 28 January 2020 I heard an application in private in which I was asked to
make a declaration in preliminary approval of a deferred prosecution agreement
(a DPA) reached between the Serious Fraud Office (SFO) and Airbus SE
(Airbus). At that hearing, I made a declaration that it was likely to be in the
interests of justice for such agreement to be made and that its proposed terms
were fair, reasonable and proportionate. Today, the 31 January 2020, I made a
final declaration and Order to that effect at a hearing held in public. One of the
consequences of this Order is that Airbus must pay a total financial sanction of
approaching one billion euros (€990,963,712 including costs) to the
Consolidated Fund via the SFO within 30 days of today’s date, made up of the
disgorgement of profit of €585,939,740 and a penalty of €398,034,571. To put
this figure into context, this financial sanction is greater than the total of all the
previous sums paid pursuant to previous DPAs and more than double the total
of fines paid in respect of all criminal conduct in England and Wales in 2018.
2. The total sums which Airbus must now pay in a global context however exceeds
€3.5 billion. This is because the SFO investigation which has led to this DPA is
part of a joint investigation with the French Parquet National Financier (PNF)
conducted by a joint investigation team (the JIT) and is parallel to an
investigation conducted by the United States Department of Justice (DOJ) and
by the United States Department of State (DOS). Each of the prosecuting
authorities has taken responsibility for a number of geographical areas or
customers and has now entered into their own DPA, Judicial Public Interest
Agreement (CJIP) or (in the case of the Department of State) a Consent
Agreement, with Airbus SE.
3. The SFO’s investigation related to bribery offences in Malaysia, Sri Lanka,
Taiwan, Indonesia and Ghana. The PNF’s investigation related to bribery and
corruption offences in China, Colombia, Nepal, South Korea, the United Arab
Emirates, Saudi Arabia (Arabsat), Taiwan and Russia. The JIT investigation
into Airbus’ conduct in Colombia was led by the SFO but the SFO agreed that
this conduct should be included in the French CJIP to reflect French primacy in
the JIT investigation. The DOJ investigation relates to bribery and corruption
offences in China and violations of parts 126.1, 129 and 130 of the US
International Traffic in Arms Regulations (ITAR) concerning a number of
jurisdictions. The DOS’s investigation relates to civil violations of ITAR
concerning various jurisdictions.
4. There is to be a simultaneous resolution in all three jurisdictions by way of
settlement agreements.
5. The criminality involved was grave. The SFO’s investigation demonstrated that
in order to increase sales, persons who performed services for and on behalf of
Airbus offered, promised or gave financial advantages to others intending to
obtain or retain business, or an advantage in the conduct of business, for Airbus
SE. It is alleged that those financial advantages were intended to induce those
Approved Judgment SFO v Airbus SE
others to improperly perform a relevant function or activity or were intended to
reward such improper performance and that Airbus did not prevent, or have in
place at the material times adequate procedures designed to prevent those
persons associated with Airbus from carrying out such conduct.
The legal framework
6. DPAs provide a mechanism by which an organisation (being a body corporate,
a partnership or an unincorporated association, but not an individual) can avoid
prosecution for certain economic offences through an agreement with the
prosecuting authority. In this jurisdiction, the prosecuting authorities are the
Director of Public Prosecutions (DPP) and the SFO. The legislative mechanism
is provided by Schedule 17 of the Crime and Courts Act 2013 (the 2013 Act).
The relevant rules of court are contained in Part 11 of the Criminal Procedure
Rules (CrPR) and a Deferred Prosecution Code of Practice (the DPA Code) is
published jointly by the SFO and the CPS. DPAs have been given extensive
consideration by Sir Brian Leveson, P. as he then was, in Serious Fraud Office
v Standard Bank Plc [2015] 11 WLUK 804, Serious Fraud Office v Sarclad
Limited [2016] 7 WLUK 211, Serious Fraud Office v Rolls Royce [2017] 1
WLUK 189 and Serious Fraud Office v Tesco Stores Ltd [2017] 4 WLUK 558.
See more recently, two decisions of William Davis J in Serious Fraud Office v
Serco Geografix Ltd [2019] 7 WLUK 45 and Serious Fraud Office v Guralp
Systems Limited (2019, U20190840).
7. The operation of the deferred prosecution regime was summarised in the
preliminary judgment of Standard Bank. At paras 1-3, Sir Brian Leveson P.
explained that:
“1. The traditional approach to the resolution of alleged
criminal conduct is for a prosecution authority to
commence proceedings by summons or charge which
then proceeds in court to trial and, if a conviction follows,
to the imposition of a sentence determined by the court.
By s. 45 and Schedule 17 of the Crime and Courts Act
2013 (“the 2013 Act”), a new mechanism of deferred
prosecution agreement (“DPA”) was introduced into the
law whereby an agreement may be reached between a
designated prosecutor and an organisation facing
prosecution for certain economic or financial offences.
The effect of such an agreement is that proceedings are
instituted by preferring a bill of indictment, but then
deferred on terms: these terms can include the payment
of a financial penalty, compensation, payment to charity
and disgorgement of profit along with implementation of
a compliance programme, co-operation with the
investigation and payment of costs. If, within the
specified time, the terms of the agreement are met,
proceedings are discontinued; a breach of the terms of the
agreement can lead to the suspension being lifted and the
prosecution pursued.
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