Afzal case highlights the SFO’s tough position on enforcing confiscation orders

In August of this year, it was reported that Saghir Afzal “failed in an attempt to renounce his British citizenship after prosecutors warned that it was a new ploy to escape justice”. This reportedly followed his attempt by Mr Afzal to reclaim his Pakistani citizenship and renounce his British status so that he could be transferred to his home country to serve the remainder of his 13-year sentence for failure repay more than £29 million of illegal profits after being convicted with another man of a £49 million mortgage fraud.

The Repatriation of Prisoners Act 1984 provides for the transfer of sentenced prisoners between the UK and other foreign jurisdictions.  This is not meant to allow an offender ‘to escape punishment for a crime’ but is to allow foreign national offenders to serve their sentence of detention (be it from a prison, hospital or other institution) in their homeland.  The benefits are usually for both the foreign national (being closer to family and friends) and also for the UK (saving much costs to the prison system for example).  These are carried out by way of Prisoner Transfer Agreements (PTAs) between the UK and other foreign jurisdictions.  The Treaty in which this was agreed between the UK and Pakistan was agreed on 24 August 2007.

Amongst other conditions, in order to seek repatriation to their homeland, an offender must be a national of the country to which repatriation is requested (although in exceptional circumstances requests from non-national residents of the proposed country of repatriation are given consideration).  It therefore appears that Mr Saghir Afzal sought to renounce his UK citizenship in order to seek his repatriation to Pakistan.  This is because if Mr Afzal remained a British citizen he would not be a foreign national (people with dual nationality are usually treated as British).

An additional difficulty which arises in cases such as Mr Afzal’s however, is where the complex (and often lengthy) confiscation regime remains extant.  It is plain that, as at August 2013, Mr Afzal had not settled his confiscation order and that the enforcement regime had not yet come into play (it appears at the “unusual” request of the SFO).  Repatriation is only available once a sentence is final and enforceable and all appeal rights have been exhausted and therefore he was not in any event able to seek repatriation at this stage (which is likely the harm which the SFO sought to avoid).  As a result, the repatriation process cannot be used to escape post-conviction POCA applications or extant criminal legal proceedings.

Repatriation is used regularly by many foreign nationals and indeed the Facilitated Returns Scheme, launched in October 2006, provides incentives (such as financial assistance) to foreign nationals from outside the European Economic Area to return to their country of origin.  There has been some commentary which suggests that this may allow some foreign prisoners to benefit from beneficial foreign practices, for example where there may be a less strict prison regime; however the use of such incentives suggests this is not considered that seriously by the UK Government.

In terms of pre-conviction issues, dual citizenship makes little difference to the way cases are prosecuted in the UK. However, issues can arise where a foreign national flees the UK to his homeland, where that country then has no extradition treaty with the UK, or refuses to extradite their own citizens.

The case of Mr Afzal highlights the SFO’s position in terms of enforcing sentence and confiscation amongst its convicted defendants.  It also suggests that the SFO believes (contrary to other UK governmental publications) that Mr Afzal should be forced to serve his sentence in the UK.  However, more tellingly it is delaying enforcement of the confiscation order, which serves to assist their “prospects” of recovery and prevents Mr Afzal from being repatriated to Pakistan in any event.  Whilst this case may therefore show the extra and pro-active steps the SFO may take to prevent foreign nationals from ‘escaping’ punishment in the UK, it more likely shows their keenness to ensure that funds caught by a confiscation order are recovered where at all possible.