Is it time for ‘ordinary’ crime to get the white-collar treatment?

Opinion: The practice of using imprisonment to deal with fine-defaulters continues unabated

‘Perhaps we should ask why “crime in the streets” cannot be treated like “crime in the boardroom”?’ Photograph: Getty Images

‘Perhaps we should ask why “crime in the streets” cannot be treated like “crime in the boardroom”?’ Photograph: Getty Images

Thu, May 1, 2014, 00:01

The imposition of a non-custodial sentence on two former Anglo executives is likely to cause public controversy due to its perceived leniency. But despite increasing revelations of corporate wrongdoing in the public domain in recent years, convictions and imprisonment for such individuals remain extremely rare.

By contrast, the criminal justice system commits thousands of low-level and petty property offenders to prison on an annual basis.

How can these two seemingly incongruous trends be reconciled? The answer lies in an analysis of the different strategies employed to deal with “white-collar” and “ordinary” crime.

The first person ever committed to prison for a breach of company law was Mark Synnott in 1996. He was sentenced to four years and three months imprisonment.

Though there are over 400 offences in the Companies Acts, nobody was imprisoned for these crimes prior to Synnott and precious few since.

In fact, the first effective custodial sentence for breaching the Companies Acts since the establishment of the Office of the Director of Corporate Enforcement (ODCE) in 2001 occurred in 2011.

According to the latest report from the ODCE, it successfully prosecuted just four individuals in the District Court in 2012. This resulted in a total of 16 convictions, none of which led to an actual committal to prison. The aggregate penalties imposed for all four individuals totalled €8,208.

The ODCE is not a normal law enforcement body. It is statutorily charged with promoting compliance with the Companies Acts and only prosecutes white-collar criminals when methods of persuasion and civil or administrative sanctions, such as disqualification orders, have failed. Law, particularly criminal law, is a sanction of last resort.

Criminal trials
Civil and administrative sanctions are sometimes an easier, though less dramatic option because regulators can avoid due process safeguards that apply in criminal trials.

Furthermore, they do not necessarily preclude a subsequent criminal prosecution, allowing regulators to combine civil and criminal strategies in appropriate cases.

Compliance-oriented approaches try to speak to the “good” man who ordinarily obeys the law but occasionally breaks the rules. If he were always sanctioned for his wrongdoing, it would undermine his good will for the law.

He might regularly challenge the law in court, posing problems for regulators with limited resources. The sanctioning approach tries to deal with the “bad” man who repeatedly refuses to obey the law through the imposition of imprisonment. In the corporate sphere, “bad” man strategies are only used when other efforts have failed. In the “ordinary” criminal justice system, the “bad” man strategy dominates. While there may be a perception that those committed to prison have committed serious and violent offences, an analysis of annual committals indicates otherwise.

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