Author: Azizur Rahman 11 February 2021
With the Serious Fraud Office losing a Supreme Court case regarding its use of the Criminal Justice Act to obtain documents held abroad, Aziz Rahman wrote for The Times about the Act’s effectiveness.
In R (on the application of KBR, Inc) v Director of the Serious Fraud Office, the Supreme Court made it clear that the SFO was not able to use section 2 of the Criminal Justice Act 1987 to force a foreign company to hand over documentation that is held in another country.
In his article, Aziz explained that the Supreme Court’s decision may prove to be one that makes it much harder for the SFO to carry out cross-border investigations. But he added that the case also raises questions about the continued relevance and effectiveness of the Criminal Justice Act.
The Supreme Court agreed with the US-based company KBR that a notice issued under section 2 of the 1987 Act, forcing it to disclose information, could not have extraterritorial reach. The Court rejected the SFO’s argument that the Criminal Justice Act could be interpreted as giving it the power to compel companies to produce evidence that is held abroad.
Aziz wrote that while the SFO’s actions in this case could be questioned, the agency’s belief that its workload requires section 2 notices to have international reach was understandable. He said that the case casts doubt on the effectiveness of the Act - with the Supreme Court ruling likely to slow down SFO investigations – and highlighted the possibility of SFO Director Lisa Osofsky calling for a change in the law to remedy this.
Aziz's article featured in The Times. (Subscription required)
Aziz Rahman is Senior Partner at Rahman Ravelli and its founder. His ability to coordinate national, international and multi-agency defences has led to success in some of the most significant corporate crime cases of this century and top rankings in international legal guides. He is recognised worldwide as one of the most capable legal experts regarding top-level, high-value commercial and financial disputes.