Certainty and financial crime control

Abstract

Purpose There has been a significant increase in the number of financial crime regulatory offences (as distinct from traditional fraud offences). The purpose of this paper is to address the question of how should those in positions of control and influence in management take steps to ensure the integrity of those under them and also the relevant conduct of their customers and clients in light of this proliferation. Design/methodology/approach The work, which is grounded in the field of criminology, uses a combination doctrinal (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 broader criminological 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 those in positions of control and influence may provide certainty to those under them to ensure integrity. Findings The 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 their customers and clients is to provide certainty with regard to the illicit activities relevant to their organisation to those persons under them. The work proposes some practical ways in which those in positions of control and influence may provide certainty to those under them to ensure integrity. Originality/value The work is novel because of its 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).