Supreme Court curbs SFO’s global reach
The Serious Fraud Office (SFO) has lost its case against US engineering company KBR in the Supreme Court over whether it can compel foreign businesses to hand over documents held overseas.
Supreme Court Judges unanimously disagreed with a 2018 High out ruling that Section 2 notices could have extra-territorial reach.
The US firm had previously challenged the validity of the notice served to one of its officers requiring they produce documents held abroad.
The High Court decision held that the legislation allowed the SFO to require a foreign company to produce documents for an investigation where there was “a sufficient connection between the company and the jurisdiction.”
But the Supreme Court today ruled against this and the consequences are wide-ranging and could equally apply to other investigatory bodies.
“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,” former SFO general counsel and Kingsley Napley criminal litigation partner Alun Milford said.
“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.”