On February 7, 2022 the Serious Fraud Office released the Statement of Facts following its July 2021 Deferred Prosecution Agreement (DPA) with Amec Foster Wheeler Energy. It was released following confirmation by the SFO that it would not be proceeding with prosecutions against any individuals connected to the investigation.
Amec Foster Wheeler was the SFO’s 10th DPA since the DPA regime was introduced in February 2014.
The conduct set out in the Statement of Facts is egregious and endemic. In approving the DPA, the judge was scathing in his assessment of the conduct of senior leaders at Amec. He noted that, but for the fact that the company had been acquired by an innocent party, the John Wood Group, he would not have granted the DPA. The Statement of Facts offers some valuable insights and lessons for corporations who may find themselves entangled in a law enforcement investigation of a similar nature.
Have a clear strategy for dealing with material that is covered by legal professional privilege (LPP). While the material may properly be cloaked by LPP and does not require disclosure for cooperation credit, it is important to consider whether a limited waiver of LPP is appropriate in the circumstances of the investigation and the alleged offending. If the company has decided that it will cooperate with the investigation, then it may require a degree of pragmatism over privileged material in its possession that will enable the investigation to proceed at pace and assist the authorities to reach a conclusion. In Amec, there was a limited waiver of LPP over legal advice received by the company in relation to its dealings with agents and public officials. The SFO regarded this waiver as part of the company’s extensive cooperation. However, the parameters of a limited waiver of LPP should be clearly documented and sufficiently detailed to avoid any misunderstandings as to the extent of the waiver.
Policies and procedures don’t effect change. People do. Who is responsible for the effective implementation? Do they have the required visibility into frontline operations? The lack of visibility and access to information can be a major impediment to ensuring that the policies and procedures effectively manage behavior and mitigate risk. In Amec, an Employee Handbook was issued in 2001, which contained a Code of Ethics and set out procedures on the use of agents. In 2004, the company issued a Code of Business Ethics & Conduct, and subsequent policies and procedures followed. All were circumvented and disregarded by employees who were determined to continue corrupt practices without the knowledge of the compliance department. They appeared to have been blind to the “culture of disregard” or powerless to stop it. Those responsible for implementing policies and procedures must have the visibility into highest risk operations and the authority to effect change.
Avoid “paper” internal investigations and reviews. The simplified essence of an internal investigation is to identify the issue, resolve it and mitigate the risk of recurrence. The collection of factual information that alludes to corporate misconduct and potential criminal offending should be a call to action and not carry on regardless. Senior leaders should be committed to taking the steps needed to resolve the identified issues and implement measures to stop such conduct from reoccurring. Amec instructed the same law firm to conduct four separate internal investigations, between 2007 and 2010, into suspicions of bribery in India, Malaysia, Saudi Arabia, and Nigeria. Each investigation uncovered evidence of corruption, and yet senior employees at Amec did the bare minimum to tackle these issues.
Those instructed as external resources should ensure that they have requisite independence and impartiality. Otherwise, the investigation is undermined and is an expensive exercise in futility.