Asil Nadir, jailed for 10 years after being found guilty of 10 counts of theft at the Old Bailey, has been ordered to pay £5 million in compensation to the Polly Peck administrators.
Nadir, who fled Britain in 1993 but returned to ‘face justice’ in 2010, denied 13 counts of theft totalling £34m. The jury found that Nadir had stolen £28.6m from his Polly Peck business empire over a 3-year period between 1987 and 1990. The empire collapsed in 1990 with debts of £550m.
Nadir told the Court that he had no assets, and did not even have a bank account. Mr Justice Holroyde said that it was not true that Nadir had not received significant income since returning to Cyprus in 1993. He said that Nadir had deliberately failed to provide information that he knew was required for the compensation hearing.
Compensation orders must take into account the means of the defendant and consequently the ability to pay such an order impacts directly on the level of the order.
With the Court imposing a £5m compensation order, it is clear that Nadir’s claims to be ‘broke’ were not believed.
The power to make a compensation order comes from the PCC(S)A 2000 ss 130-132. Compensation orders are available where it can be shown that there has been some loss incurred. This loss may be personal injury, loss or damage resulting from the offence of which the defendant has been convicted.
General principles include the requirement to make a ‘just’ order on the information it has, the compensation is not considered an additional punishment, and of course, the loss must be fairly said to have resulted from the offence. Compensation Orders are not a means of ‘buying’ a shorter sentence and are simply a convenient summary means of ‘putting things right’.
Asil Nadir was found to have stolen £28.3m in his trial at the Old Bailey in August 2012. Why then, is the compensation order for a mere £5m? It has been reported that Nadir was renting a Mayfair apartment and arriving to court each day in ‘luxury chauffer driven cars’.
The answer is simple. When considering the amount subject of the compensation order, the court must consider the ability of the defendant to comply with the order. The obvious reason being that there is no point in making an order if the defendant is unable to pay. Nor would it be fair to make an order (with a period of imprisonment in default of payment of the order) which the defendant is unable to comply with.
There is a requirement to ‘have regard’ to the means of the defendant in the Act, and further, the Court of Appeal have decided that there is a duty to inquire into the means of the defendant. Once the court has inquired into the means of the defendant, the court must be satisfied that the defendant has the means to pay the order within a reasonable period of time. The assessment does not need to include a precise calculation, rather a broad picture will suffice.
It was reported that the Judge found that Nadir had deliberately failed to provide information that he knew was required for the compensation hearing. There is no duty on the prosecution to conduct an inquiry into his means. Therefore the court must make its own assessment on the information it had. The court therefore must be satisfied that Nadir has the means to pay £5m in a reasonable time.
Mr Justice Holroyde stated: “Conscious that I am probably erring on the side of caution and being more generous to the defendant than he deserves, I believe he has the means to pay compensation of £5m.” It can be inferred that the Judge was not satisfied that Nadir’s fortunes stretched much further than the £5m order.
Whilst it may appear unfair that, having been found guilty of stealing £28.3m, he is only required to repay £5m, in reality, that sum is thought to be about as much as Nadir can afford.
[Updated 3 November 2012]