High Court finds SFO can compel production of documents held by foreign company outside the jurisdiction

In a recent decision in the context of a judicial review, the High Court held that the SFO was able to compel a foreign company to produce documents located outside the jurisdiction, pursuant to s.2(3) of the Criminal Justice Act 1987 (CJA), where there was "a sufficient connection between the company and the jurisdiction": R (On The Application Of KBR Inc) v The Director of the Serious Fraud Office [2018] EWHC 2368 (Admin).

This is the first time that an English court has reasoned that compulsory disclosure powers exercisable by a UK criminal enforcement agency have extraterritorial application. The judgment is notable for its finding of the extraterritorial operation of a statute where no explicit wording in favour of extraterritoriality applied. In the civil context, the courts have also seemed increasingly willing, in recent years, to find that provisions enabling the enforcement of judgments and orders have extraterritorial effect, such as the court's powers of committal (see here).

From a civil litigation perspective, the increased reach of the SFO to obtain documents outside of this jurisdiction, in light of the KBR decision, may increase the scope of documents that are ultimately disclosable in civil proceedings. This may be because the SFO is itself a party to the proceedings – the CJA does not act as a bar against the SFO giving disclosure of documents obtained under its compulsory powers (see Tchenguiz v Rawlinson and Hunter Trustees SA [2013] EWHC 2128 (QB), considered here) – although the circumstances in which this is likely to be the case will be rare. Or, if it was known that the SFO had obtained the documents, a litigant could make an application against the SFO for third party disclosure under CPR 31.17 – such an application was granted against the police in Frankson v Home Office [2003] EWCA Civ 655, for example, the court having balanced the competing public interests. It is relevant to note that, where there is an ongoing criminal investigation or prosecution, those public interest factors would include not only the general public interest considerations pertaining to the investigation of crime but also considerations pertaining to possible prejudice to that investigation, and, if ordered, disclosure might be made subject to strict conditions, as it was in Frankson. Further, unless the material became public via a trial process in due course, or a party confirmed that they had disclosed documents to the SFO, a litigant would not be expected to have visibility of this fact.

Nonetheless, those who provide documents to the SFO in response to s.2 notices should be aware that such documents may be disclosable by the SFO in civil proceedings, if the SFO becomes a party or is required to provide third party disclosure.

For more information on the KBR decision, see our Global Corporate Crime and Investigations e-bulletin here.