English High Court Ruling on the Extraterritoriality of the Serious Fraud Office’s Powers
October 2, 2018
The English High Court recently handed down its judgment in a judicial review claim brought by KBR Inc. against the U.K. Serious Fraud Office.
The claim concerned the scope of the SFO’s power to compel the production of documents held outside the U.K. under section 2(3) of the Criminal Justice Act 1987 (“Section 2(3)”).
In summary, the High Court ruled that:
- A U.K. company could be compelled through a notice under Section 2(3) to produce documents it holds overseas.
- A Section 2(3) notice extends extraterritorially to foreign companies in respect of documents held overseas when there is a “sufficient connection” between the company and the U.K..
- The SFO was permitted to issue a Section 2(3) notice despite having the power to seek mutual legal assistance from overseas authorities to receive the same information.
- A Section 2(3) notice is validly served by the SFO by handing it to a “senior officer” of an overseas company who was temporarily present within the U.K..
The Court’s rulings will be of interest to international businesses with operations or interests in the U.K.. The Court’s conclusions also have parallels to federal court decisions in the U.S. addressing the enforcement of grand jury subpoenas issued in criminal investigations.