On 5 February 2021, the Supreme Court handed down judgment in a keenly anticipated case concerning the scope of extraterritorial application of the SFO’s section 2 powers, R (on the application of KBR, Inc) (Appellant) v Director of the Serious Fraud Office (Respondent) [2021] UKSC 2 (“KBR v SFO”).
The Supreme Court unanimously allowed the appeal, confirming that the SFO did not possess the power to compel a foreign company to produce documents held outside the UK.
The appeal followed a 2018 Divisional Court hearing of the case, in which the High Court “read in” extraterritorial application to section 2(3) powers, provided that a “sufficient connection” could be drawn between the company which was the recipient of the notice and the UK. On a “leapfrog” appeal by KBR Inc, which bypassed the Court of Appeal, the Supreme Court ruled that Parliament had not intended to confer extraterritorial application to section 2(3) of the Criminal Justice Act 1987 (“CJA 1987”) and that to imply extraterritoriality in the circumstances would result in an “illegitimate rewriting of the statute.”
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