Factors against prosecution23 Mar 2021 20:54
- Co-operation
-- Check
- A lack of history of similar conduct involving prior criminal, civil and regulatory enforcement actions against the Company and/or its directors/partners and/or majority shareholders. The prosecutor should contact relevant regulatory departments (including overseas where applicable) to ascertain this;
-- Check
- The existence of a proactive corporate compliance programme both at the time of offending and at the time of reporting but which failed to be effective in this instance;
-- Check
- The offending represents isolated actions by individuals, for example by a rogue director;
-- Check
- The offending is not recent and the Company in its current form is effectively a different entity from that which committed the offences. For example:
The Company may have been taken over by another organisation;
The Company may no longer operate in the relevant industry or market;
The Company’s management team may have been completely changed;
disciplinary action (including dismissal where appropriate) may have been taken against all the culpable individuals; and/or
corporate structures or processes have been changed to minimise the risk of repetition of offending.
-- Check (change in management + discipilinary action + corporate structures)
- A conviction is likely to have disproportionate consequences for the Company:
These consequences may be under domestic law, EU law or the law of another jurisdiction;[13]
In particular, potential consequences such as mandatory and discretionary exclusion from bidding and/or participating in public contracts must be considered, as well as any licencing implications for organisations that operate within a regulated sector.
-- UAE/Saudi/Iraq consequences already seen in Petrofac, Check
- A conviction is likely to have collateral effects on the public, the Company’s employees and shareholders or the Company and/or institutional pension holders.
-- Check (Covid times, already impacted employees, shareholders, etc.)
DPA with results in April??
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