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Supreme Court decides that section 2(3) Criminal Justice Act 1987 cannot require foreigner to produce material held overseas

Published:

Re: R (on the application of KBR, Inc) v Director of the Serious Fraud Office [2021] UKSC 2

KBR Inc is a parent company incorporated in the United States of America. KBR Inc does not have a fixed place of business in the UK, but it does have UK subsidiaries, including Kellogg Brown & Root Ltd (“KBR Ltd”). The Serious Fraud Office commenced a criminal investigation into, amongst others, KBR Ltd, concerning suspected offences of bribery and corruption.

The Director of the Serious Fraud Office issued a notice pursuant to section 2(3) of the Criminal Justice Act 1987 requiring KBR Inc to produce documents held by it outside the United Kingdom. KBR Inc sought judicial review of the notice on the ground that the notice was ultra vires since section 2(3) did not operate extraterritorially.

The High Court dismissed KBR In’s claim. KBR Inc appealed to the Supreme Court.

HELD: Appeal allowed. Parliament did not intend section 2(3) to displace the presumption to give the SFO the power to compel a foreign company to produce documents it holds outside the UK. In summary, this is correct taking into account the wording, purpose and context of section 2(3), considered in the light of relevant principles of interpretation and principles of international law and comity. When Parliament intends legislation to have extra-territorial effect, it makes this clear by including express wording in the statutory provisions. There is no such express wording in section 2(3), and neither is extra-territorial implied. Legislative history indicates that Parliament intended that evidence of fraud should be obtained from abroad by establishing reciprocal arrangements for co-operation with other countries.

Jamas Hodivala QC was involved in this case.