Mind Your Comity: KBR and the SFO

On 5 February 2021, the UK Supreme Court decided the case of R (oao KBR, Inc.) v Director of the Serious Fraud Office [2021] UKSC 2 regarding the extraterritorial scope of the Serious Fraud Office’s (“SFO”) investigatory powers. The Court was unanimous in deciding that the SFO’s broad powers to compel production of information and documents under section 2(3) of the Criminal Justice Act 1987 (a “S2 Notice” under the “Act”) could not extend so far as to be effective against a foreign person who holds the relevant documents or data outside of the UK jurisdiction. The Court relied upon the established principles of international comity as between sovereign states and noted that the Act did not rebut the general presumption against extra-territorial application of UK law. Had Parliament intended S2 Notices to have such an effect, then the Act should have made that plain through express provision. Instead of serving a S2 Notice in the current case, the SFO should have used established (albeit slower, and more cumbersome) avenues of mutual legal assistance to seek the same documents held overseas.

Whilst we presume that this judgment will be less than warmly received by the SFO and other UK law enforcement authorities, the decision does bring welcome clarity for international business entities and their advisers.

This note summarises the key aspects of the UK Supreme Court judgment.[1]

Background

KBR Inc. is a USA-incorporated company, which has no presence or history of business within the United Kingdom. The company’s subsidiaries include Kellogg Brown and Root Limited (“KBR UK”), a British entity that was under SFO investigation related to the broader case regarding Unaoil.

KBR UK had cooperated with the SFO throughout its investigation and complied with an initial S2 Notice, to which KBR Inc voluntarily produced documents that were located outside of the UK. Some months later, the SFO invited company representatives to a meeting in London, and insisted that corporate officers of KBR Inc attend as well as the company’s external lawyers (the “July 2017 Meeting”). During that meeting, the SFO served a further S2 Notice on KBR Inc’s officers, requiring it to produce documents held outside the jurisdiction.

KBR Inc sought judicial review of the S2 Notice, contending, among other things, that it did not have extraterritorial effect.

In a closely-watched and controversial decision in 2018[2], the High Court found in favour of the SFO and held that the S2 Notice could, and did, have extraterritorial application. The key aspects of that decision can be summarised briefly as:

• Given the nature of the SFO’s work, being “top end fraud, well-heeled, well lawyered crime”[3], the Court observed that many of the SFO’s investigations had an international dimension. The Court referred to the ease with which documents can be transferred electronically, noting that those intent on frustrating a criminal investigation may choose to put documents outside the reach of an investigative agency.
• In light of this, the Court found that there was an extremely strong public interest in the extraterritorial application of a S2 Notice and a jurisdictional bar would defeat the purposes of the legislation; and that extraterritorial application only arose where foreign companies had a ‘sufficient connection’ to the UK jurisdiction. The High Court found that there had been a ‘sufficient connection’ between KBR Inc and the UK, because of its involvement in approving and processing relevant payments to Unaoil.

KBR Inc appealed to the UK Supreme Court.

Judgment

The Supreme Court unanimously allowed KBR Inc’s appeal, finding that there was no basis for the High Court’s ruling, and that the SFO had acted beyond its legitimate powers under the Act. We select the following as particular highlights from the decision:

1.      The starting point is the presumption that domestic law is generally not intended to have extra-territorial effect. This presumption reflects the requirements of international law, whereby one State should not infringe upon the sovereignty of another, and the rule of comity, which is founded on mutual respect between States.

2.      The Court found that KBR Inc had never carried on business in the UK nor did it have a registered office or other presence in the UK. The fact that KBR Inc’s officers attended the July 2017 Meeting with the SFO (at the latter’s insistence) did not alter the presumption.

3.      The Court then examined what Parliament had intended when passing the Act, and whether the language of S.2 rebutted the general presumption against extraterritorial effect. The Court found no such express wording in the Act[4], and it rejected the SFO’s argument that extraterritorial application of S.2 should be implied; similarly, there was nothing in the legislative history of the Act to support the SFO’s argument in that respect.

4.      The Court emphasised that the SFO’s taking and receipt of evidence held abroad should be conducted pursuant to long-standing reciprocal international arrangements, i.e. the established framework for mutual legal assistance (“MLA”) in criminal matters. In the present case, the High Court had found that the use of MLA was an additional power to that contained in S.2 of the Act; however, the Supreme Court disagreed. The Supreme Court found a conceptual tension between Parliament’s legislation regarding MLA on one hand[5], and the SFO’s present argument that the Act gave it a broad unilateral power to compel foreign companies to produce documents held abroad “without any recourse to the courts of authorities of the State where the evidence [is] located and without protection of the [MLA] safeguards.”’[6]

5.      Finally, the Court found that the High Court had erred in implying a sufficient connection test into S.2 of the Act, which amounted to illegitimately re-writing the statute.

Comment

This case comes as a blow, not only to the SFO, but other UK law enforcement agencies who investigate and prosecute complex cross-border crime and have similar document production powers. This ruling makes it clear that those agencies cannot simply circumvent the domestic MLA framework in relation to the taking and receipt of evidence held abroad, no matter how lengthy and cumbersome that process may be.

In addition to MLA, however, the SFO and other authorities remain able to use their powers under the Crime (Overseas Production Orders) Act 2019 (“COPO”), which allows them to compel foreign companies to produce electronic data. The power to compel production under COPO can only be exercised where a designated international co-operation agreement (a “DICA”) exists between the UK and the government of the country where electronic information is located, or from where it is controlled. For example, a DICA exists between the US and UK regarding data sharing arrangements, as facilitated by the 2018 US CLOUD Act. Those statutory safeguards ensure that there are checks and balances regarding the extraterritorial effect of prosecuting authority’s production powers.

However, despite the significance of the Supreme Court’s ruling in KBR, many companies issued with a S2 Notice will, in the spirit of cooperation, provide material that is held outside the jurisdiction, especially where a deferred prosecution agreement (“DPA”) is at stake. In its Corporate Co-operation Guidance[7], the SFO makes clear that co-operation for the purposes of a DPA means “providing assistance to the SFO that goes above and beyond what the law requires”, an indicator of which is “[providing] relevant material that is held abroad where it is in the possession or under the control of the organisation.”[8]

To discuss how this decision may affect your business operations, please contact Anupreet Amole of our London office or your usual Brown Rudnick adviser.

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[1] R (on the application of KBR, Inc) v Director of the Serious Fraud Office [2021] UKSC 2 (https://www.supremecourt.uk/cases/docs/uksc-2018-0215-judgment.pdf)

[2] R (on the application of KBR, Inc) v. The Director of the Serious Fraud Office [2018] EWHC 2368 (Admin)

[3] Op.cit ftn.1 at para 9.

[4] By contrast, the Court pointed to express provisions in the Criminal Justice Act 1988 (re torture overseas), the Sexual Offences Act 2003, and the Bribery Act 2010; “The more exorbitant the jurisdiction, the more is likely to be required of the statutory provisions in order to rebut the presumption against extra-territorial effect. Section 2(3) [of the Act] includes no such express provision”. Op.cit ftn/2 at para 28.

[5] Beginning with the Criminal Justice (International Co-operation) Act 1990.

[6] Op.cit ftn.2 at para 45.

[7] See SFO Corporate Cooperation Guidance (SFO Operational Handbook): (https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/sfo-operational-handbook/corporate-co-operation-guidance/), accessed 5 February 2021.

[8] Op.cit ftn.5 at para 1.9.

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