On 5 February, an Alert from Wilmer Hale report on the Supreme Court hearing of an application by KBR Inc in a high-profile case concerned the territorial extent of the SFO powers under section 2 of the Criminal Justice Act 1987, so-called ‘Section 2’ or ‘Here and Now’ Notices for obtaining information, documents etc. The outcome has implications for the SFO’s evidence-gathering capabilities. The Court agreed with KBR that the statutory power under section 2 does not have extraterritorial effect, and accordingly the notices involved were unlawful. The Supreme Court found that the correct mechanism for the SFO to obtain the relevant evidence would have been via a mutual legal assistance (MLA) request to the US authorities.
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