UK Supreme Court: Serious Fraud Office Cannot Compel Foreign Companies to Produce Documents Held Abroad

Case: R (on the application of KBR, Inc) (Appellant) v Director of the Serious Fraud Office (Respondent) [2021] UKSC 2

On February 5, 2021, the UK Supreme Court ruled that the Serious Fraud Office (SFO) cannot compel foreign companies with no presence in the jurisdiction to produce documents held abroad using its powers under Section 2(3) of the Criminal Justice Act 1987 (CJA 1987).

After losing its ability to use European Investigation Orders to obtain evidence located in other EU member states due to Brexit, the judgment is a further setback for the SFO in terms of the extraterritorial reach of its investigative powers and may in certain circumstances affect its ability to investigate fully cross-border serious fraud cases. When seeking documents or electronic data held abroad from foreign companies that are not registered in the UK or do not carry on business there, the SFO will now have to rely on mutual legal assistance or an overseas production order (where such mechanisms are available).

However, the Supreme Court’s ruling will provide foreign companies with greater certainty regarding documents that may have to be produced to the SFO, particularly where production could be resisted in their own jurisdiction on grounds of privilege.