In R (on the application of KBR Incv The Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), the High Court has recently considered the extra-territorial ambit of a Notice compelling the production of documents and data under Section 2(3) CJA 1987.

On 17 February 2017, the SFO commenced a criminal investigation into, among others, KBR Ltd, a UK subsidiary of the US company KBR Inc, concerning suspected offences of bribery and corruption. The SFO claimed to have identified a large number of suspected corrupt payments totalling US$23m, to Unaoil, a company engaged at various times by KBR's UK subsidiaries, ostensibly to provide consultancy services in the oil and gas industry.

The SFO also identified 27 separate categories of material that were potentially outside the jurisdiction in the possession or control of KBR Inc in the US, and outside the control of KBR Ltd. Therefore, during a meeting held at the offices of the SFO on 25 July 2017, a Notice was served on a representative of KBR Inc, EA, who was its Executive Vice President, General Counsel and Corporate Secretary, compelling the production of the relevant material.

Upon KBR Inc's challenge to the validity of the Notice, the High Court found that:

  • Section 2(3) CJA 1987 did not require the Notice to be served “on KBR Inc." EA was present at the meeting within the jurisdiction, representing KBR Inc, and not coincidentally or on a personal frolic, and there were no additional formalities to be fulfilled by the SFO in serving the Notice upon her;
  • whilst there were some unappealing features of the SFO's decision to hand the Notice to EA in the course of attending a meeting to discuss the investigation, they did not serve to invalidate the Notice;
  • the Notice was not, as KBR Inc submitted, ultra vires because it requested material held outside the UK;
  • Section 2 Notices must have an element of extra-territorial application and can extend to foreign companies in respect of documents held outside the jurisdiction when there is a sufficient connection between the foreign company and the UK;
  • KBR Inc's own actions in approving and making payments relating to KBR Ltd's contracts or arrangements with Unaoil made good a sufficient connection between KBR Inc and the UK, thereby bringing it within the scope of Section 2(3);
  • further support for KBR Inc's connection with the UK could be found in one of the company's corporate officers being based in KBR Group's UK office; and
  • the availability of Mutual Legal Assistance between the authorities of different countries was simply an alternative route by which the SFO could obtain information in certain cases, and did not preclude the SFO from choosing to exercise its Section 2 powers instead.

This decision illustrates the extent to which the High Court will be supportive of the SFO's work in the public interest.