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.’
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