header-logo header-logo

08 February 2021
Issue: 7920 / Categories: Legal News , Criminal , Disclosure
printer mail-detail

Blow for fraud office as overseas documents ruled out of reach

Foreign companies under investigation by the Serious Fraud Office (SFO) cannot be compelled to produce material held overseas, the Supreme Court has unanimously held

KBR, Inc is a US-incorporated company with subsidiaries in the UK including KBR Ltd. The SFO began an investigation into KBR Ltd, among others, for suspected bribery and corruption offences.

The SFO issued a notice under s 2(3), Criminal Justice Act 1987 requiring KBR to produce documents held outside the UK. KBR argued the notice was ultra vires because s2(3) did not operate extraterritorially.

The Supreme Court allowed KBR’s appeal, in R (oao KBR, Inc) v Director of the SFO [2021] UKSC 2.

Kingsley Napley criminal litigation partner Alun Milford said: ‘Given almost all of its cases involve some element of overseas evidence gathering, this decision will be disappointing for the SFO―not least since, following Brexit, it no longer has access to European Investigation Orders.

‘States do not generally welcome the use by other states of extraterritorial powers within their borders, so a judgment in the SFO’s favour was never going to spell the end of conventional mutual legal assistance in its cases. It simply has to double down now on making those mechanisms work.’

Andrew Smith, partner at Corker Binning, said: ‘The judgment is a welcome reminder of the presumption against extraterritoriality in English criminal law.

‘The 1987 statute which created the SFO’s powers may be ill-suited to modern age, when the SFO frequently investigates multinationals holding relevant documents overseas. But it is not the role of the courts to rewrite statutes merely to further the public interest in investigating crime.

‘It will now be for Parliament to decide whether the statutes, which date from over 30 years ago, can or should be updated.’

Issue: 7920 / Categories: Legal News , Criminal , Disclosure
printer mail-details

MOVERS & SHAKERS

Gateley Legal—Jack Kelly

Gateley Legal—Jack Kelly

Gateley Legal expands Midlands residential development team

Gibson Dunn—Richard Surtees

Gibson Dunn—Richard Surtees

Gibson Dunn adds employee benefits and executive compensation practice in London with partner Richard Surtees

Laytons ETL—Alec Cameron

Laytons ETL—Alec Cameron

Laytons ETL appoints new partner and head of intellectual property disputes

NEWS
A series of recent decisions has clarified important principles across property law, from perpetuities to lease renewals and public rights over land
Employers cannot rely on wellbeing services alone to defend workplace stress claims after a High Court decision awarding almost £1m to an overworked employee
Andy Burnham's brand of 'Manchesterism' could offer fresh thinking on legal aid and access to justice if it reaches Westminster, according to Roger Smith, NLJ columnist and former director of JUSTICE
The constitutional fallout from a change of prime minister, rather than the politics, is under scrutiny as questions arise over the limits of executive authority in a leadership transition
The legal profession is undergoing a fundamental shift from selling services to creating technology-enabled products, according to Professor Luke Mason, Head of School of Law at Regent's University London
back-to-top-scroll