The Presumption Against Extraterritoriality, Mutual Legal Assistance, and the Future of Law Enforcement Cross‐Border Evidence Collection
| Published date | 01 March 2022 |
| Author | Tim Cochrane |
| Date | 01 March 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12675 |
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Modern Law Review
DOI:10.1111/1468-2230.12675
The Presumption Against Extraterritor iality, Mutual
Legal Assistance, and the Future of Law Enforcement
Cross-Border Evidence Collection
Tim Cochrane∗
R (KBR, Inc) vDirector of the Serious Fraud Oce is a signicant judgment for the eld of law
enforcement cross-border evidence collection,both in the United Kingdom and beyond. The
UK Supreme Court ruled that the Director of the Serious Fraud Oce’s powers to compel
disclosure of materials under section 2(3) of the Criminal Justice Act 1987 did not extend ex-
traterritorially to foreign companies with no xed UK place of business and which were not
carrying on business in the UK. This judgment arms the continued signicance of the pre-
sumption against extraterritorially and identies a general UK parliamentar y preferencethat law
enforcement obtain overseas material through cooperativeprocesses like mutual legal assistance,
rather than unilaterally. Much however remains unsettled for the future of this eld,given de-
veloping issues in transnational criminal law, human rights – particularly rights of privacy and
data protection – and public international law.
INTRODUCTION
In R (KBR, Inc) vDirector of the Serious Fraud Oce1(KBR), the UK Supreme
Court ruled that the Director of the Serious Fraud Oce’s powers to compel
disclosure of materials under section 2(3) of the Criminal Justice Act 1987
(CJA 1987) did not extend extraterritorially to foreign companies where those
companies had no xed UK place of business and werenot car rying on business
in the UK. The court held that interpreting section 2(3) in that way would be
contrary to the presumption against extraterritor iality and inconsistent with a
clear UK parliamentary preference that overseas evidence be obtained through
cooperative transnational mechanisms like mutual legal assistance (MLA).2
There is plenty to applaud in the court’s judgment. Its two main ndings
provide greatly needed clarity as to the proper interpretation of law enforce-
ment evidence gathering powers in cross-bordercontexts. Its reasoning may also
∗PhD Candidate, University of Cambridge Faculty of Law; MPhil Law (Dist) (Oxon); LLM (Dist)
(UPenn);LLB/BA(Hons) (Otago);Attorney & Counselor-at-Law,New York State; Solicitor,Senior
Courts of England and Wales;Bar rister and Solicitor of the High Court of New Zealand (all non-
practising).This note was drafted while the author was in receipt of the Fitzwilliam College Stan Gold
PhD Studentship. The author would like to thank David Erdos, Robert Cur rie, Anna Dannreuther,
and an anonymous reviewer for comments.The usual disclaimers apply.
1R (KBR, Inc) vDirector of the Serious Fraud Oce [2021] UKSC 2, [2021] 2 WLR 335.
2 See generally Home Oce, Request for Mutual Legal Assistance in Criminal Matters: Guidelines for
Authorities Outside the United Kingdom – 2015 (London: Home Oce, 12th ed, March 2015).
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited. (2022)85(2) MLR 526–538
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