SFO v Petrofac: A new approach from the SFO?
By David Stern
David Stern and Rebecca Thomas analyse the Petrofac decision on bribery
On 4 October 2021, Petrofac Limited (“Petrofac”) was sentenced at Southwark Crown Court following guilty pleas to seven counts of failing to prevent bribery contrary to s.7 Bribery Act 2010. This followed a four-year corruption and money laundering investigation conducted by the Serious Fraud Office (SFO) and the earlier guilty pleas of David Lufkin, former Global Head of Sales, who was sentenced on the same occasion. This followed pre-charge plea discussions between the parties with agreement being reached as to scope of the indictment and approach to sentencing.
Petrofac must pay a fine of £47m by February 2022, and a further £29.5m by way of costs and confiscation within the next three months. David Lufkin was sentenced to two years’ imprisonment, suspended for a period of 18 months, in recognition of his significant efforts to cooperate with the SFO’s investigations.
Petrofac was convicted of failing to prevent former employees from offering and making payments to third party agents in relation to gas and oil infrastructure projects based in Iraq, Saudi Arabia and the UAE. Bribes totalling $81m were made to win contracts worth $7.5bn.
The corruption came to light following the commencement of an investigation by the SFO and the subsequent cooperation of David Lufkin, after his own guilty pleas to 14 counts of bribery contrary to s.1 Bribery Act 2010. The corruption had tainted the very highest echelons of Petrofac, with two former board members implicated.
While Petrofac had attempted their own internal investigation in 2016, the allegations failed to come to light – at least in that there was no self-report to the SFO. Petrofac’s culpability sprang from the failure of its internal compliance policies. All employees involved in the charges have since left the business and the company has indicated that it has overhauled its compliance programme, currently operating with much higher ethical standards.
During her sentencing remarks, Her Honour Judge Taylor noted that Petrofac’s efforts to remedy their compliance failings were a substantial factor when it came to the court’s decision regarding the appropriate fine. However, she accepted that there was little good in bankrupting a largely reformed company.
Through joint submissions, the parties submitted that Petrofac’s offending fell within the highest category in the sentencing guidelines, agreeing a figure for harm of £67,780,700. The parties suggested that the figure should be multiplied by 300 per cent to reflect Petrofac’s culpability, resulting in a final fine of £131,563,336, once it had been reduced by a third to reflect Petrofac’s early guilty plea. The court determined that the appropriate multiplier to reflect Petrofac’s culpability was 325 per cent, producing an initially larger figure than the parties had agreed. However, it was accepted that, due to obligations owed to HM Treasury and other creditors, the fine would be capped.
The prosecution placed David Lufkin’s culpability in category 1A on the sentencing guidelines, which has a starting point of 7 years’ custody, but accepted that this should be substantially reduced in accordance with the guidance in R v P (Blackburn)  Cr App R (S) 5, concerning the operation of s.73 Serious Organised Crime and Police Act (SOCPA) 2005 agreements.
Eligibility for Deferred Prosecution Agreements
On the face of it, this case is a departure from the SFO’s recent strategy of negotiating deferred prosecution agreements (DPAs), whereby the corporate avoids any criminal conviction. Since the scheme was introduced in 2014, DPAs have been considered a welcome development for corporations, in that they have enabled both sides to mitigate the risks and expense of lengthy trials, while ensuring that reparation is made for corporate criminal behaviour conducted by or on its behalf.
Factors specific to this case made it unlikely the SFO and Petrofac could reach a DPA. First, it would have been undoubtedly unattractive if Petrofac avoided any criminal liability once David Lufkin had pleaded guilty. Second, the nature of ‘failing to prevent’ offences meant there was far less of an incentive for the SFO to compromise. Unless a company can show it had adequate compliance procedures in place, the offence is strict liability – the SFO faced no difficulties trying to identify the culpability of Petrofac’s ‘operating mind’.
Perhaps most importantly, it was clear that Petrofac began cooperating relatively late on in the investigation. The court noted that, but for Mr Lufkin’s cooperation, it was unlikely that Petrofac would have pleaded guilty. DPAs reached with Airline Services Limited (2020), Airbus SE (2020) and Guralp Systems Ltd (2019) were all predicated on the companies’ voluntarily self-reporting to the SFO.
Advantages of DPAs
In SFO v Standard Bank (U20150854) the court stated that financial penalties featured as a term of DPAs must demonstrate broad comparability with a fine following conviction – nonetheless, DPAs remain a much better option for companies where possible.
A DPA will likely have less reputational damage and less publicity than a criminal trial. A criminal conviction for certain offences (in particular s.1 and s.6 Bribery Act 2010) may prevent companies from subsequently applying for government contracts in the UK. Any kind of criminal conviction could have ramifications for companies operating in other jurisdictions, in particular the United States.
Moreover, by leaving the question of sentence in the hands of the courts rather than seeking judicial approval of any DPA, the parties relinquish control over the final outcome to the discretion of the court. In this case, HHJ Taylor plainly took the view that the parties had underestimated Petrofac’s culpability and it has only avoided the consequences of attribution at a higher level of culpability by virtue of its current financial position. Companies with deeper pockets would almost certainly do better to avoid the exercise of the court’s discretion.
In recent years, the SFO has faced some criticism for its use of DPAs as a resolution to large-scale corporate wrongdoing, particularly where no individuals were ultimately convicted or even prosecuted. In February 2019, the SFO announced it was abandoning its case against former executives of Rolls-Royce two years after a DPA had been signed – and the prosecution against two former directors of Tesco ended with a successful submission of no case to answer after a DPA had been signed.
In this case, the SFO has indicated that investigations are ongoing.
David Stern (Joint Head of Business Crime and Regulation) and Rebecca Thomas are barristers at 5 St Andrew’s Hill (5SAH): 5sah.co.uk