Certainty and financial crime control
| Pages | 678-690 |
| Published date | 02 October 2017 |
| Date | 02 October 2017 |
| DOI | https://doi.org/10.1108/JFC-09-2016-0058 |
| Author | Mathew Leighton-Daly |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial crime |
Certainty and financial
crime control
Mathew Leighton-Daly
Australian Graduate School of Policing and Security, Barton, Australia
Abstract
Purpose –There has been a significant increase in the number of financial crime regulatory offences (as
distinct from traditionalfraud offences). The purpose of this paper is to address the question of howshould
those in positions of control and influence in management take stepsto ensure the integrity of those under
them and alsothe relevant conduct of their customers and clients in lightof this proliferation.
Design/methodology/approach –The work, which is grounded in the field of criminology, uses a
combinationdoctrinal (legal) and qualitative methods.Its emphasis is on mala prohibita (“wrong because they
are prohibited”) offences rather than mala in se (“wrong or evil in itself”). The work situates regulatory
offences within the broadercriminological debate regarding financial crime. It then analyses and reviews the
significance of the requirement for certainty in relation to mala prohibita offences. By reference to some
Australian offences, the analysis moves to some offences where uncertainty manifests. Finally, the work
proposes some practical ways in which thosein positions of control and influence may provide certainty to
those underthem to ensure integrity.
Findings –The paper argues thata paramount stepfor those in positions of control and influence, in taking
steps to ensure the integrityof those under them and also the relevant conduct of theircustomers and clients
is to provide certaintywith regard to the illicit activities relevant to their organisationto those persons under
them. The work proposes some practical ways in which those in positions of control and influence may
provide certaintyto those under them to ensure integrity.
Originality/value –Theworkisnovelbecauseofits focus on regulatory mala prohibita offences rather than
the traditional criminal law or mala in se offences (in relation to which there has been much more discussion).
Keywords Fraud, Financial crime, Money laundering, Corporate governance, White collar crime,
AML/CTF
Paper type Research paper
Introduction
One key aspect of the rule of law is certainty. An ambiguous, vague, obscure or imprecise
law is likely to mislead or confuse. Legal philosophers and the courts have identifiedthat an
absence of clarity is destructiveto the rule of law. Criminologists deal with certainty too as a
component of deterrence theory,which suggests that people avoid criminal behaviour if that
behaviour elicits certainpunishment. From a corporate governance perspective, certaintyin
the context of enforcement of unethicalbehaviour is an important part of creating a positive
tone at the top and culture.
There has been a proliferation of financial crime regulatory offences (as distinct from
traditional fraud offences),particularly since the September 2001 attacks on the USA. These
prohibitions are often technical or mala prohibita (wrong only because they are prohibited)
rather than a democratic reflection of wrong or evil. Moreover, many of these offences are
part of complex regulatory regimes, which do not necessarily reconcile neatly with each
other or with other regimesor broader theories, law and policy.
This paper argues that a paramount step for those in positions of control and influence,
in taking steps to ensure the integrity of those under them and also the relevant conduct of
JFC
24,4
678
Journalof Financial Crime
Vol.24 No. 4, 2017
pp. 678-690
© Emerald Publishing Limited
1359-0790
DOI 10.1108/JFC-09-2016-0058
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1359-0790.htm
To continue reading
Request your trial