On 8 April 2019, the UK Supreme Court granted KBR Inc. leave to appeal against a decision that allows the SFO to compel certain foreign companies to hand over documents held overseas. The Supreme Court’s decision was published on 23 May 2019 (see here).
KBR Inc. is appealing the judgment in R (on the application of KBR Inc) v The Director of the Serious Fraud Office [2018] EWHC 2012 (Admin) (KBR v SFO), in which the Administrative Court held that section 2(3) of the Criminal Justice Act 1987 (CJA), which (broadly) gives the SFO power to require a person to produce specified documents in connection with an SFO investigation, has certain extra-territorial effect. The Court held that section 2(3) CJA operates with extra-territorial effect to compel a foreign company to produce documents held outside the jurisdiction where there is a ‘sufficient connection between the company and the jurisdiction’ (even though no such test is included in the statute). The Court also indicated that a section 2(3) notice can be used to compel a UK company to produce documents that are held on a server outside of the jurisdiction. For more information on this decision, please see here our blog on the case.
The decision in KBR v SFO was controversial and roundly criticised for seeking to support UK authorities’ assertion of extraterritorial information-gathering powers by applying a wholly purposive and contextual interpretation to the legislation granting those powers. The decision has had an impact beyond SFO investigations because the ‘sufficient connection’ test has been applied to give extraterritorial effect to certain of HMRC’s powers see here).