‘Collaring’ the Crime and the Criminal?: ‘Jury Psychology’ and Some Criminological Perspectives on Fraud and the Criminal Law
| Author | Sarah Wilson |
| Date | 01 February 2006 |
| Published date | 01 February 2006 |
| DOI | 10.1350/jcla.2006.70.1.75 |
| Subject Matter | Article |
‘Collaring’ the Crime and the
Criminal?: ‘Jury Psychology’
and Some Criminological
Perspectives on Fraud and the
Criminal Law
Sarah Wilson*
Abstract This article concerns proposed changes to English criminal law,
which will be directed at tackling the problem of fraud. Notwithstanding
the considerable energy channelled into the genesis of the Fraud Bill
currently before Parliament, this article points to the ways in which far too
little attention has been paid to the highly ambivalent nature of fraud in
societal consciousness. While drawing extensively upon workings of crim-
inology to illustrate the difficulties apparent in achieving societal recogni-
tion of fraud as serious crime, and even ‘real’ crime at all, this article points
to a number of problems which might flow from the Fraud Bill’s enact-
ment which are far from ‘abstract’, and which could seriously undermine
the raison d’être of the proposed legislation.
This article concerns proposed changes to English criminal law, directed
at ‘crime committed in the commercial sphere’,1most commonly found
grouped under the broad classification of fraud. Following government
consultation on proposals for new legislation2, a Fraud Bill was pre-
sented to Parliament in May 20053but this article is actually anchored to
the earlier Law Commission Report on Fraud4published in 2002. Focus-
ing on the proposed fraud offence within the Bill,5the article identifies
the possible difficulties which might be experienced in its introduction
into English law. While there is reference to criminal law perspectives
providing valuable insight into the way in which ‘[t]he “general of-
fence” is alien to English lawyers and faces strong . . . opposition’,6the
main concern is with criminological questions arising from popular
stereotypings of ‘crime’ and ‘the criminal’. Thus, while this article
* School of Law, Keele University; e-mail s.j.wilson@law.keele.ac.uk. I would like to
thank Gary Wilson for his very helpful comments, and for his encouragement.
1Legislating the Criminal Code, Fraud and Deception: A Consultation Paper, Law Com.
No. 155 (1999) (hereafter Legislating the Criminal Code) para. 1.4.
2Fraud Law Reform—Consultation on Proposals for Legislation was launched by
Baroness Scotland on 17 May 2004, and Fraud Law Reform: Government Response to
Consultations (hereafter Government Response) was published in October 2004.
3 The Bill was introduced in the House of Commons by Home Secretary Charles
Clarke on 23 May 2005 and in the House of Lords by the Attorney-General, Lord
Goldsmith on 25 May 2005.
4Report on Fraud, Law Com. No. 276, Cm. 5560 (2002).
5 The full text of the Bill can be found at www.publications.parliament.uk, accessed
22 November 2005.
6 D. Ormerod, ‘A Bit of a Con? The Law Commission’s Consultation Paper on
Fraud’ [1999] Crim LR 796–804.
75
interfaces with the concerns of criminal lawyers—particularly in rela-
tion to the operation of dishonesty and the role of the jury in the trial of
fraud—it is primarily an examination of the Law Commission’s pro-
posals and the Fraud Bill’s current journey through Parliament in light
of the difficulties apparent in achieving societal recognition of those who
commit ‘crime in the commercial sphere’ as criminals, and acknow-
ledgement of fraud as serious crime, and even ‘real’ crime at all.
The article examines the recommendation made by the Law Commis-
sion of a general offence of fraud rather than a general dishonesty
offence, and following from the Government’s broad acceptance of this
proposal (with some technical modification), it asks whether the new
fraud offence will embed with comfort into English law and English
legal culture. The analysis concentrates on the continuing role of the
jury in fraud trials (where appropriate, acknowledging the proposed
introduction of a judge-only approach in the ‘most complex fraud
cases’7) and considers how, given the raison d’être of improving the law,
the envisaged availability of a single and comprehensive definition of
fraud might affect juries’ decision-making. It seeks to determine
whether the proposed model might actually perversely affect jury
decision-making and generate disproportionate numbers of acquittals,
and to this end it draws upon academic studies documenting acknowl-
edged reluctance to convict those with ‘white collars’ as criminals, and
also observations of the ambiguous nature of fraud itself. Reference will
also be made to new research which has been conducted into the
relationship between ‘business fraud’ and ‘entrepreneurial spirit’, and
also to a recent study on the criminology of ‘everyday-life crime’.8
Illustrative reference to ‘business fraud’ and ‘everyday-life crime’,
pursued alongside classic studies in white-collar crime, will in turn
follow the lead provided by a response actually made to the Law
Commission’s 1999 Consultation. The Report on Fraud refers to one
response proposing that, in respect of a general dishonesty offence, ‘to
ask the jury to consider whether conduct ought to be criminal was to ask
the wrong thing of it’. Explaining this by reference to the fact-finding
role of the jury, it was proposed that a general dishonesty offence could
lead to frequent acquittals of those who ought to be convicted because
the jury could not cope with the decision being asked of it.9Although
framed in reference to a general criminalisation of dishonesty (rather
than the preferred general fraud model subsequently adopted by the
Law Commission and then the Government) it is a pity that the Law
Commission did not take more notice of the import of ‘jury psychology’,
and how it might apply in respect of its preferred formulation. It will be
argued below that even within the proposed offence, inappropriate
7 Pursuant to s. 43 of the Criminal Justice Act 2005. See the addresses made in the
House of Commons and House of Lords by the Solicitor-General and Attorney-
General respectively on 21 June 2005.
8 The former draws on research interests of the author and also Gary Wilson, and in
the case of the latter a very important study by criminologists Susanne Karstedt
and Stephen Farrall.
9Report on Fraud, paras 5.41–5.44.
The Journal of Criminal Law
76
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