- Home
- News & insights
- Insights
- UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
Disputes Quick Read – 58 of 93 Insights
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
- Quick read
A hugely significant judgment was handed down on 5 February 2021 by the Supreme Court in the case of R (on the application of KBR, Inc) v Director of the Serious Fraud Office [2021] UKSC 2.
The case provides clarity on the limits of the Serious Fraud Office's (SFO) statutory powers. The Supreme Court ruled that the SFO does not have the power under Section 2(3) of the Criminal Justice Act 1987 (CJA) to compel a foreign company to produce documents held overseas.
Under Section 2(3) of the CJA, the Director of the SFO, for the purposes of an investigation, has the power to issue a notice requiring the production of documents and other information (Section 2 Notice). Failure to comply with such a notice is a criminal offence.
Historically, the SFO has interpreted this provision very broadly and it is extensively relied on by the SFO when investigating fraud and bribery cases.
Case background
In early 2017 the SFO began an investigation into KBR Ltd (KBR UK), a UK subsidiary of KBR, Inc (a US incorporated company). As part of the SFO's investigation they issued a Section 2 Notice, requiring the production of various categories of documents.
KBR UK provided several documents and stated that certain other materials were not within its possession or control. KBR UK's position on the other material was that to the extent it existed, it would be held by its parent company in the US. In response, when officers of KBR, Inc attended a meeting with the SFO in London, the SFO handed them a Section 2 Notice requiring production of material held by KBR, Inc outside the UK.
KBR, Inc applied to quash that Section 2 Notice. The High Court rejected the application, holding that the SFO could require a foreign company to produce documents held overseas pursuant to Section 2(3) of the CJA. It determined that the legislation was intended to have some extra-territorial application if there is a "sufficient connection" between the company and the UK, which on the present facts it did.
The Supreme Court appeal
KBR, Inc appealed to the Supreme Court, whose assessment began from the presumption that the UK legislation is generally not intended to have extra-territorial effect. This presumption is rooted in both the requirements of international law and the concept of comity, which is founded on mutual respect between States.
Therefore, the key question for the Supreme Court was whether Parliament had intended for Section 2(3) of the CJA to displace the presumption, such that the SFO had power to compel a non-UK company to produce documents held outside the UK. It found nothing in the CJA itself – or in the background to its enactment – to support the notion that the presumption did not apply. The CJA did not have extra-territorial effect.
The Supreme Court therefore unanimously allowed the appeal and held that the Section 2 Notice was invalid.
What's the impact of the Supreme Court's decision?
The Supreme Court judgment is the latest blow to the SFO and – given the often-international element of their investigations – it may put a spanner in the works of ongoing and future investigations. The judgment gives some welcome clarity to practitioners on the limits of the SFO's statutory powers and their evidence gathering capabilities in cross-border financial crime.
While the judgment is a huge setback for the SFO, the decision will not affect the SFO's powers in relation to UK companies concerning documents in their control held overseas. In the case of international corporate groups, it may even affect the way that documents come to be stored, in the hope of putting them outside the scope of a UK investigation.
Find out more
To discuss the issues raised in this article in more detail, please contact a member of our Disputes & Investigations team.
In this series
New SFO Director announces bold plans to tackle fraud
21 March 2024
by Emma Allen, Amy Cheng
First of its kind judicial guidance on the use of AI in the courts
14 December 2023
Witness familiarisation - does it affect the court's assessment of witness credibility?
13 December 2023
The use of AI in Trial Witness Statements post-PD 57AC
23 October 2023
by Multiple authors
CAT to hear the first application for a collective settlement approval order
17 October 2023
Pre-Action Protocols – what is different?
12 September 2023
by Tom Charnley
Failure to prevent fraud – a new offence?
14 August 2023
by Multiple authors
Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
by Multiple authors
The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
by Multiple authors
Disputes Quick Read – developments in the fixed costs regime
3 May 2023
by James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
by James Bryden
Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
by Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
by Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
by Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
by Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
by Multiple authors
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
by Multiple authors
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
by Multiple authors
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
by Tim Strong
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
by Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
by Multiple authors
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
by Nick Storrs
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
by Multiple authors
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
by Multiple authors
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
Disputes Quick Read: A different approach to witness evidence
11 March 2020
by James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
by Stuart Broom
Disputes Quick Read: Embracing remote hearings – the experience to date
26 March 2020
by Multiple authors
Disputes quick read: climate change activism by litigation
26 February 2020
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
21 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
by Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
by Multiple authors
