STANLEY N. KINYANJUI THE CATHOLIC UNIVERSITY OF EASTERN AFRICA 1 1 | Page ANALYSIS OF FRAUD FROM A CRIMINOLOGIST PERSPECTIVE. INTRODUCTION. What is central to the essence of criminology is the study of crime. What actions are defined as crimes and why? What causes crimes? How are crimes dealt with? What can prevent them? The crux of this paper is to analyze and frame the crime of fraud vis-à-vis the criminologist perspective. Wherefore having due regards to the aims of criminology, the four core Chapters (As divided herein) of this paper shall seek to answer: 1) What actions constitute and what is the definition of fraud? 2) What causes Fraud? 3) How are cases of Fraud dealt with? and; 4) What measure can be used to prevent fraud? Fraud has been banished to a contested corner of white collar crime, where many aspects of it do not entirely fit and the focus is of minimal interest… fraud is probably the most expensive crime to society; it is carried out by the most people; it inflicts the widest damage upon society; it is of limited interest to the police; and worst of all it is probably growing. 1 CHAPTER 1: 1.0: WHAT ACTIONS OR WHAT IS THE DEFINITION OF FRAUD? 1.1 Definition of Fraud. There are but three ways to illegally relieve a victim of his money: force, trickery or larceny. All those offences that employ trickery are frauds 2 Many scholars have formulated many definitions of fraud that have tried to encompass all its elements and they fall not short of legal writers and those tasked with investigating and 1 http://compass.port.ac.uk/UoP/file/ca128869-cec9-4e47-89d2- c817db4b4af9/1/The%20Emergence%20of%20Counter%20Fraud%20Studies_IMSLRN.zip/page_04.htm accessed on 11th Mar. 2015. 2 Joseph T. Wells, Occupational Fraud Abuse, Obsidian Publishing Co., 1997 at Pg. 4.
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STANLEY N. KINYANJUI THE CATHOLIC UNIVERSITY OF EASTERN AFRICA
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ANALYSIS OF FRAUD FROM A CRIMINOLOGIST PERSPECTIVE.
INTRODUCTION.
What is central to the essence of criminology is the study of crime. What actions are defined as
crimes and why? What causes crimes? How are crimes dealt with? What can prevent them? The
crux of this paper is to analyze and frame the crime of fraud vis-à-vis the criminologist
perspective.
Wherefore having due regards to the aims of criminology, the four core Chapters (As divided
herein) of this paper shall seek to answer:
1) What actions constitute and what is the definition of fraud?
2) What causes Fraud?
3) How are cases of Fraud dealt with? and;
4) What measure can be used to prevent fraud?
Fraud has been banished to a contested corner of white collar crime, where many aspects of it do
not entirely fit and the focus is of minimal interest… fraud is probably the most expensive crime
to society; it is carried out by the most people; it inflicts the widest damage upon society; it is of
limited interest to the police; and worst of all it is probably growing.1
CHAPTER 1:
1.0: WHAT ACTIONS OR WHAT IS THE DEFINITION OF FRAUD?
1.1 Definition of Fraud.
There are but three ways to illegally relieve a victim of his money: force, trickery or larceny. All
those offences that employ trickery are frauds 2
Many scholars have formulated many definitions of fraud that have tried to encompass all its
elements and they fall not short of legal writers and those tasked with investigating and
STANLEY N. KINYANJUI THE CATHOLIC UNIVERSITY OF EASTERN AFRICA
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prosecuting fraud. However, the one common element to most of them is the notion of deception
in order to make some form of gain. In legal terms, until recently, Stephens‟s History of the
Criminal Law of England3 has been regarded as the most authoritative definition of fraud and
fraud related offences in the English legal systems4. Thus,
“I shall not attempt to construct a definition which will meet every case which might be
suggested, but there is little danger in saying that whenever the words 'fraud' and 'intent to
defraud', or 'fraudulently' occur in the definition of a crime two elements at least are essential to
the commission of the crime: namely first, deceit or an intention to deceive or in some cases
mere secrecy; and secondly, either actual injury or possible injury or an intent to expose some
person either to actual injury or to risk of possible injury by means of that deceit or secrecy.”5
(Stephen, 1883, P.121)
professional accountants have added to these legal definitions and opinions Thus, Davies (2000,
p. 3) sees it as All those activities involving dishonesty and deception that can drain value from a
business, directly or indirectly, whether or not there is personal benefit to the fraudster.6
What these definitions suggest is that fraud is based upon some form of intention of deception
and/or dishonesty alongside the achievement of some kind of gain. Clearly this still leaves a wide
range of potential behaviors that could be regarded as fraud. For example, politicians frequently
promise the electorate things they know they cannot provide for the purpose of achieving a gain
(election) and yet most would not consider this a fraud for which they should be prosecuted.
Thus it is perhaps better to distinguish between two things: fraud as a theoretical concept, which
might include a very wide range of potential behaviors, some difficult to define legally as fraud;
and fraud as a legal concept, providing a narrower and more specific definition regarding the
actions that can be prosecuted as frauds.7
3 James F. Stephen, A History of the Criminal Law of England (1883), London, Macmillan. Retreived via
https://archive.org/stream/ahistorycrimina01unkngoog/ahistorycrimina01unkngoog_djvu.txt on 11th March 2015. 4 Geoff Smith, Mark Button, Les Johnston, Kwabena Frimpong, Studying Fraud as White Collar Crime, Palgrave
Macmillan, 2011. At P.13. 5 Supra n. 2 at P.121.
6 Davies D, Fraud Watch, ABG Professional Information, 2
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In his Differential Association theory, Sutherland posited that “Criminal behavior is learned in
association with those who define such behavior favorably and in isolation from those who
define it unfavorably. . . a person in an appropriate situation engages in such criminal behavior if,
and only if, the weight of the favorable definitions exceeds the weight of the unfavorable
definitions.”11
It was Sutherland who coined the term white-collar crime in 1939 in a speech. He intended the
definition to mean criminal acts of corporations and individuals acting in their corporate
capacity. Since that time, however, the term has come to mean almost any financial or economic
crime, from the mailroom to the boardroom.
In Principles of Criminology12
and White-Collar Crime13
, Sutherland developed his theory of
differential association. Sutherland studied fraud committed by business executives against
shareholders and the general public.
Sutherland drew from the work of E.A. Ross, who published Sin and Society in 1907. Ross
asserted that American capitalism was threatened by “the criminaloid,” i.e., businessmen whose
greed and moral impairment drove them to put acquiring money above all other considerations,
including the welfare and lives of thousands of citizens and the continued health of the capitalist
system. He posited that this criminaloid prospered because a self-satisfied public allowed him to
hide behind a façade of respectability.14
Sutherland propounds that indeed white collar crime (or fraud for the purpose of this paper) is
commissioned by criminals who have acquired this skills and learnt them from associating with
persons who already are engaged in the crime. Indeed, it is normal for a person to learn stealing
by living with a thief as opposed to living with an honest man and can acquire honesty by living
with an honest person as opposed to a thief.
2.2. Donald Cressey – The Fraud Triangle.
In the late 1940s while researching for his doctoral thesis, criminologist Donald R. Cressey
interviewed nearly 200 incarcerated embezzlers, including convicted executives. He found the
11
A review of Sutherland’s White Collar Crime by Robert C. Sorensen, Journal of Criminal Law and Criminology (1931-1951) Vol. 41, No. 1 (May - Jun., 1950), p. 80. Retrieved from http://www.jstor.org 12
Sutherland, Edwin H. (1924) Principles of Criminology, Chicago: University of Chicago Press. 13
Sutherland, Edwin H. (1949) White Collar Crime, New York: Holt, Rinehart & Winston. 14
http://dmwatson.homestead.com/files/CAUSES_OF_FRAUD.pdf accessed on 11th Mar. 2015.