In a welcome landmark Supreme Court decision handed down today (5th February), KBR Inc has successfully overturned the validity of a s.2 (3) notice issued by the Serious Fraud Office (SFO). 

The SFO had sought to use its powers under s.2 (3) Criminal Justice Act 1987 (CJA) to compel KBR Inc to provide certain documents as part of an investigation into a UK subsidiary. 

KBR Inc is a foreign company with no fixed trading address or business in the UK. 

The SFO has, it seems, wrongly assumed that the powers under s.2 (3) would have extra-territorial effect in this case and on first appeal the divisional court agreed. However on appeal to the Supreme Court the decision was reversed, rendering the notice invalid. 

I have worked on many cases involving Mutual Legal Assistance (MLA), where an investigatory body seeks assistance from its foreign counterpart. This is enshrined and recognised in the comity of international law and is the route the SFO should have adopted. 

The Supreme Court ruled that, notwithstanding other legislative Acts, if parliament had intended s.2 (3) CJA to have an extra-territorial effect then it would have been made clear in the Act.