Download Criminal offence

Criminal offence
If the breach of a legal rule
(the wrong) has criminal
consequences attached to
it, will it be a criminal
offence
Basic elements of most crimes
1.
2.
Actus reus: before a person can be
convicted, it must be proved that he or
she acted in a fashion proscribed by law:
this is known as the actus reus of an
offence
Mens rea: an intention to act in the
proscribed fashion or to bring about the
unacceptable ends, or in some cases
reckless indifference to causing a
particular harm.
Morality, economics, politics,
power, public administration,
public order and public safety
all play a part in declaring
certain acts or omissions as
criminal
Does crime occur because man is inherently
evil?
Or because of socio-economic conditions?
Or because of physical-mental illness?
Or because of genetic, inherited defects?
Or are there other factors or combinations of
factors which are responsible?
White collar crime (E. Sutherland)
….the behaviour of persons of respectability
and upper socio-economic class frequently
exhibits all the essential attributes of crime
but it is only very rarely dealt with as such.
This situation emerges (Sutherland claims),
from a tendency for systems of criminal
justice in societies such as our own to favour
certain economically and politically powerful
groups and to disfavour others, notably the
poor and the unskilled who comprise the bulk
of the visible criminal population (Carson)
Edwin H. Sutherland
White-collar criminality
The economists are well acquainted with
business methods but not accustomed to
consider them from the point of view of
crime.
Many sociologists are well acquainted with
crime, but not accustomed to consider it as
expressed in business
The criminal statistics show unequivocally
that crime, as popularly conceived and
officially measured, has a high incidence in
the lower class and a low incidence in the
upper class.
Crime is concentrated in the lower class, it is
caused by poverty or by personal and social
characteristics believed to be associated
statistically
with
poverty,
including
feeblemindedness, psychopathic deviations,
slum
neighborhoods, and “deteriorated”
families
The criminal behaviour of business and professional men
“The robber barons”
Colonel Vanderbilt asked: “You don’t suppose you
can run a railroad in accordance with the statutes, do
you?”
A.B. Stickney, a railroad president, said to sixteen
other railroad presidents in the home of J.P.
Morgan in 1890 “I have the utmost respect for you
gentlemen, individually, but as railroad presidents I
wouldn’t trust you with my watch out of my sight”
Charles Francis Adam said “The difficulty in railroad
management ….. lies in covetousness, want of good
faith, and low moral tone of railway managers, in the
complete absence of any high standard of
commercial honesty”
White collar criminality in business
It is expressed most frequently in the form of
misrepresentation in financial statements of
corporations, manipulation in the stock
exchange, commercial bribery, bribery of
public officials directly or indirectly in order to
secure favourable contracts and legislation,
misrepresentation
in
advertising
and
salesmanship,
embezzlement
and
misapplication of funds, short weights and
measures and misgrading of commodities, tax
frauds,
misapplication
of
funds
in
receiverships and bankruptcies
The financial cost of white collar crime
It is probably several times as great as the
financial cost of all the crimes which are
customarily regarded as “the crime problem”. An
officer of a chain grocery store in one year
embezzled $600,000, which was six times as
much as the annual losses from five hundred
burglaries and robberies of the stores in that
chain. Public enemies numbered one to six
secured $130,000 by burglary and robbery in
1938, while the sum stolen by Krueger is
estimated at $250,000,000, or nearly two
thousand times as much.
The New York Times in 1931 reported four
cases of embezzlement in the United
States with a loss of more than a million
dollars each and a combined loss of nine
million dollars.
Although a million-dollar burglar or robber
is practically unheard of, these milliondollar embezzlers are small-fry among
white-collar criminals
The damage to social
relations
The financial loss from white-collar-crime,
as great as it is, is less important than the
damage to social relations. White collar
crimes violate trust and therefore create
distrust, which lowers social morale and
produces social disorganization on a large
scale
White collar crime is real crime
The crucial question in this analysis is the
criterion of violation of the criminal law.
Conviction in the criminal court, which is
sometimes suggested as the criterion, is
not adequate because a large proportion of
those who commit crimes are not
convicted in criminal courts. This criterion,
therefore, needs to be supplemented
The upper class has greater influence in moulding the
criminal law and its administration to its own interests than
does the lower class. The privileged position of whitecollar criminals before the law results to a slight extent
from bribery and political pressures, principally from the
respect in which they are held and without special effort
on their part. The most powerful group in medieval society
secured relative immunity by “benefit of clergy” and now
our most powerful groups secure relative immunity by
“benefit of business or profession”.
White collar victims
In contrast with the power of white collar
criminals is the weakness of their victims.
Consumers, investors, and stockholders are
unorganized, lack technical knowledge, and
cannot protect themselves.
White collar criminality flourishes at points
where powerful business and professional
men come in contact with persons who are
weak. In this respect, it is similar to stealing
candy from a baby.
The theory that criminal behaviour in general is
due either to poverty or to the psychopathic or
sociopathic conditions associated with poverty
can now be shown to be invalid for three
reasons.
First, the generalization is based on a biased
sample which omits almost entirely the behaviour
of white-collar criminals. The criminologists have
restricted their data, for reasons of convenience
and ignorance rather than of principle, largely to
cases dealt with in criminal courts and juvenile
courts, and these agencies are used principally
for criminals from the lower economic strata
Second, the generalization that criminology
is closely associated with poverty
obviously does not apply to white-collar
criminals. With a small number of
exceptions, they are not in poverty, were
not reared in slums or badly deteriorated
families, and are not feebleminded or
psychopathic
Third the conventional theories do not
even explain lower class criminality. The
sociopathic and psychopathic factors
which have been emphasized doubtless
have something to do with crime
causation, but these factors have not been
related to a general process which is found
both in white-collar criminality and lower
class criminality and therefore they do not
explain the criminality of either class
Sutherland’s definition of white collar
crime consists of four criteria:
 A crime
 committed
by a person of
respectability
 of high social status
 in the course of his/her
occupation
A violation of trust
Some commentators add “a violation of
trust” to the definition of white collar
crimes.
A more useful distinction can be made
between job-related crimes committed for
the corporation (“corporate crimes”) and
those committed against it (where the
employer does not gain. This would
include embezzlement and theft from the
employer).
Corporate crime
An illegal act of omission or commission,
punishable by criminal sanction, which is
committed by an individual or group of individuals
in the course of their work as employees of a
legitimate organization, and which is intended to
contribute to the achievement of goals or other
objectives thought to be important to the
organization as a whole or some sub-unit within it,
and which has serious physical or economic
impact on employees, the general public,
consumers, corporations, organizations and
governments.
Characteristics of
white collar
crimes
Low visibility
An essential feature of white-collar offences is that
they take place under the cover of normal
occupational routines (Shapiro, 1990), and involve
the exploitation of occupational expertise or
organizational system. They can therefore be readily
disguised as ‘business offenders are legitimately
present at the scene’ (Clarke, 1990). All of this means
that victims are often unaware that any offence has
been committed at all. In addition, offences are
generally ‘private’ rather than public, leaving little
visible evidence of their commission. This relative
invisibility means that offences are peculiarly resistant
to detection, and even when detected, are often not
reported to public authorities.
Complexity
 While many white-collar crimes can essentially be
reduced to lying, cheating and stealing (Shapiro,
1990), many are extremely complex. The expertise
which is being abused, which forms the basis of the
offender’s occupational position, may be scientific,
technological, financial or legal. Many are also highly
organized, involve many employees, and may have
been going on for several years. Organizational
offences may involve a complex web of falsification,
cover ups, action and inaction. Many of the
regulations and laws which are being flouted are
themselves exceedingly complex, making it difficult to
determine exactly what offences have been
committed and who is responsible for them.
Diffusion of responsibility
In many organizations functions are
separated and responsibilities delegated.
Consequently, it is often difficult to
determine who is immediately responsible
for any offence
The diffusion of victimisation
Victimization is also diffused. Whereas in
many conventional offences individual
identifiable offenders harm individual
identifiable victims, in many white-collar
offences there is no single identifiable
victim. The victim may be an abstract entity
such as the government or the company,
or there may be many victims who suffer
only a minimal loss
Detection and prosecution
White-collar crimes are particularly difficult
to detect by victims, supervisors or law
enforcers. Enforcers must possess the
same scientific and technical knowledge as
perpetrators and it may take many weeks,
months or even years of careful
investigation to unravel the more complex
offences
Lenient sanctions
Even when prosecuted, it is
often argued that white-collar
offenders are not dealt with
severely. Few offenders are
sent to prison and the vast
majority are fined amounts
which are often described as
“derisory”
Ambiguous law
The nature of offences creates many legal
problems. Their complexity means that it is
often difficult to capture the essence of
offences in legislation and to specify
precisely the situations in which an offence
has been committed, leaving many
loopholes to be exploited.
References:
 Katherine S. Williams, Textbook on Criminology, Oxford University Press,
2004
 Edwin H. Sutherland, White-Collar-Criminality, American Sociological
Review, 1940