The Presumption Against Extraterritoriality, Mutual Legal Assistance, and the Future of Law Enforcement Cross‐Border Evidence Collection

Abstract

AbstractR (KBR, Inc) v Director of the Serious Fraud Office is a significant judgment for the field 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 Office's powers to compel disclosure of materials under section 2(3) of the Criminal Justice Act 1987 did not extend extraterritorially to foreign companies with no fixed UK place of business and which were not carrying on business in the UK. This judgment affirms the continued significance of the presumption against extraterritorially and identifies a general UK parliamentary preference that law enforcement obtain overseas material through cooperative processes like mutual legal assistance, rather than unilaterally. Much however remains unsettled for the future of this field, given developing issues in transnational criminal law, human rights – particularly rights of privacy and data protection – and public international law.