Outcome at a glance
KBR won its challenge to the asserted overseas reach of the SFO’s document-production power. The Supreme Court unanimously allowed its appeal.
Allegations & issues
KBR challenged a section 2(3) notice demanding documents held abroad, arguing that the SFO lacked the statutory power to compel this US company.
Key rulings & findings
Section 2(3) of the Criminal Justice Act 1987 did not permit compulsion of overseas documents from KBR, which had no UK business presence. The Court rejected the proposed sufficient-connection test.
Admissions
The appeal outcome contains no admission of wrongdoing by KBR.
Disposition
Appeal unanimously allowed on 5 February 2021.
Penalties, damages & redress
This judicial review appeal imposed no misconduct penalty.
Restrictions & obligations
The ruling limited the document power considered; it did not abolish international evidence-gathering mechanisms.
The overseas-document demand
The SFO served a notice on an officer of the US parent company during a meeting in London. The notice sought material held abroad. KBR Inc challenged the demand, distinguishing its position from that of its UK subsidiary, which had received a separate request. [1; 2, Background]
The lower court accepted a sufficient-connection test for extending the statutory power to a foreign company. The Supreme Court rejected that approach: Parliament had not supplied that test or the claimed extraterritorial power through section 2(3). [1; 2, Reasons]
International assistance and the decision’s boundary
The Court considered the presumption against extraterritorial legislation, the statutory language and the history of international evidence gathering. Mutual legal assistance arrangements contained safeguards that a broad unilateral production power would bypass. The purpose of investigating serious fraud did not itself supply the missing statutory authority. [1; 2]
The appeal did not prevent a UK company being required to produce its own overseas documents, nor did it decide the merits of the underlying investigation. The outcome concerned the notice to this foreign company in these circumstances. Presence of an officer at a London meeting did not change that conclusion. [1; 2]
THE UNDERLYING RECORD
Primary sources
Read the full documents for their precise wording and context. Regulator summaries are identified separately from court records.
Court record · supremecourt.uk01 · Supreme Court · Case record and judgment ↗Court record · supremecourt.uk02 · Supreme Court · Press summary, 5 February 2021 ↗