Exploring Prominent Themes in White Collar Crime Literature

A critical analysis on how UK and the USA responds to Bribery as significant part of White Collar Crime

Literature Review

The prominent themes in the literature related to white collar crimes are that of defining white collar crime and relating the crime to the nature of actor, that is the person who can commit the white collar crime. In criminology, two perspectives on white collar crime are used for linking the crime to the actor. The critical criminology perspective emphasises on the status of the actor being that of rich and the powerful, and critiques the traditional criminological approach of linking crimes with low income groups. The anomie theory in criminology have sought to delink white collar crime from the status of the actor and has emphasised that most white collar crimes are economic offences that can be committed by anyone. The traditional approach to white collar crime found in critical theory was a way for shifting focus away from the conceptualisation of crimes from the context of class. Anomie theory links white collar crime to opportunity and social pressures to make more money. Seen from this angle, it can be said that there are many white collar crimes, such as, income tax fraud, bribery, and embezzlement, that can be done by individuals belonging to any class. Corruption is explained in this context as well. Corruption, especially bribery, is not necessarily committed by people in powerful positions.

First, the term corruption may be defined for the purposes of this study. This is not an easy task because literature itself is abound with the complexities in defining corruption, explained by one author as “exploring a complicated maze replete with dead ends and surprising turns enough to frustrate the hardiest venture.” Literature on corruption in general shows a tendency to define corruption from different angles and approaches, which lead to different ways of defining corruption. Even the task of identifying the causes of corruption from a unidimensional perspective or one theory is a difficult task because no one theory can

P Ugwudike, An Introduction to critical criminology (Bristol: Policy Press 2015).
Robert Agnew, , Nicole Leeper Piquero, Francis T Cullen, ‘General Strain Theory and White-Collar Crime’ in The criminology of white-collar crime (New York: Springer 2009).
Robert Lilly, Francis T Cullen, and Richard A Ball, Criminological theory: Context and consequences (Sage 2010) 261.
Robert Agnew, , Nicole Leeper Piquero, Francis T Cullen, ‘General Strain Theory and White-Collar Crime’ in The criminology of white-collar crime (New York: Springer 2009) 37.
G Caiden, ‘Foreword’ in G. d. Graaf, P. v. Maravic and P. Wagenaar (eds), The good cause: Theoretical perspectives on corruption (Opladen and Farmington Hills: Barbara Budrich Publishers 2010) 9.

describe all the causes of corruption. Moreover, coming back to the perspective of the anomie theory, even if it is considered that the opportunities of corruption exist everywhere, the degrees vary, and individuals do not respond to opportunities of corruption in the same way.

Corruption is also defined from the perspective of public and private corruption. In the public context, corruption is defined as the “abuse of public office for personal gain.” The defining of corruption in this sense fails to account for corruption that takes place in the private contexts, such as, white collar crimes that take place within private organisations and corporations. Corporate corruption also does not come within the scope of corruption when defined in this public sense. To be sure, the defining of corruption in the public sense is part of a dominant discourse on corruption which has been critiqued for its focus on corruption that happens only in public spheres and therefore limited for greater part to corruption in developing countries and its inability to account for corruption that happens in private sense, such as, in multinational companies in western nations. From a legal perspective, the problem with such generalisations about corruption is that it does not lead to a better language and understanding of corruption so that appropriate responses to corruption in the form of laws can be formulated. This is also appropriate in the light of literature on corruption in the aftermath of the global economic crisis, which started in 2008 and affected both the US and the UK, where the crisis was linked to corrupt practices and high level of white collar crime in the banking and financial sector of these countries. It has also been noted that there is a high level of corruption in the public sector largely dominated by Western multinational companies.

Both in the UK as well as in the US, the argument that corruption is not to be seen just from the public angle but also from the private angle, is a valid argument to defining corruption

G. D. Graaf, P. V. Maravic, P.Wagenaar, ‘Introduction: Causes of corruption-the right question or the right perspective?’ in The good cause: Theoretical perspectives on corruption (Opladen and Farmington Hills: Barbara Budrich Publishers 2010) 13.
G Caiden, ‘Foreword’ in G. d. Graaf, P. v. Maravic and P. Wagenaar (eds), The good cause: Theoretical perspectives on corruption (Opladen and Farmington Hills: Barbara Budrich Publishers 2010) 9.
The World Bank, Helping Countries Combat Corruption: The Role of the World Bank (Washington, DC: World Bank Group 1997) 8.
J Everett, D Neu, R Rahaman, ‘The global fight against corruption: A foucaultian, virtue-ethics framing’ (2006) 65 (1) Journal of Business Ethics 1.
E Breit, TT Lennerfors, L Olaison, ‘Critiquing corruption: A turn to theory’ (2015) Ephemera: Theory and Politics in Organization 319.
E Brown and J Cloke, ‘Critical perspectives on corruption: an overview’ (2011) Critical perspectives on international business 116.
TT Lennerfors, ‘The sublime object of corruption: Exploring the relevance of a psychoanalytical two-bodies doctrine for understanding corruption’ in Ethics and organizational practice: Questioning the moral foundations of management (Cheltenham: Edward Elgar 2010).

because in both countries, public corruption is very low, but there is still significant incidence of corruption and bribery, particularly bribes given in foreign countries and related to the multinational corporations and businesses. Therefore, for the purpose of this dissertation, the definition of corruption cannot be taken in the public context, rather it has to be taken in the private context.

Whether public or private, there is one common element in corruption, which is also relevant to this study. This is the rational choice that is made by individuals to indulge in some act that is corrupt, such as, the taking or giving of bribery. Individuals that indulge in a corrupt act, make a choice to further their own interest. For the purpose of this study, the concept of self-interest and the actions of the individuals to further their self interest is an essential aspect. This study is concerned with the laws that are made by the US and the UK to respond to the white collar crime of bribery. Bribery is an act which is usually done for the furtherance of some personal interest. In the US and the UK, this self interest can also be involved in the way the multinational corporations are involved in giving of bribery to foreign public officials. Anti-corruption and anti-bribery laws in these countries need to respond to private sector corruption, particularly corporate corruption.

The principal legislation response in the UK to bribery is in the enactment of the Bribery Act 2010. The Bribery Act 2010 defines bribery as the giving or the offering of bribes to foreign public officials as well as the giving or offering of bribes to private individuals. Moreover, the Bribery Act 2010 penalises the soliciting or receiving of bribery by a public official or private citizen. Both active bribery, and passive bribery are offences under the Act, therefore, both the giving and receiving of bribery is punishable offence. The United States has responded to bribery and corruption as white collar crimes through a host of measures. One of the prominent measures is in the passing of the Foreign Corrupt Practices Act 1977 which is used for the prosecution of bribery related offences committed by companies in foreign jurisdictions. The Organisation of Economic Co-operation and Development (OECD) has noted that the “United States has investigated and prosecuted the most foreign bribery

Susan Rose-Ackerman, Corruption: A study in political economy (New York: Academic Press 1978)
S Obidairo, Transnational corruption and corporations: Regulating bribery through corporate liability (Oxon: Routledge 2016).
B Rothstein,’ Anti-corruption: the indirect ‘big bang’ approach’ (2011) Review of International Political Economy 228.
Cecily Rose, 'The UK Bribery Act 2010 and Accompanying Guidance: Belated Implementation of the OECD Anti-Bribery Convention' (2012) 61 (2) International & Comparative Law Quarterly 485.
The UK Bribery Act 2010, Section 1.
Ibid, Section 2.

cases among the Parties to the Anti-Bribery Convention” after the passage of Foreign Corrupt Practices Act 1977. However, this may not be the complete picture as noted in the following observation:

“Approximately 85% of DOJ criminal FCPA enforcement actions business organizations over the past decade were secured through alternative resolution vehicles not subjected to any meaningful judicial scrutiny. Rather than praising the fruits of this dynamic, this dynamic is something to lament.”

Therefore, there are gaps in how the US responds to the issue of bribery prosecution, which may be studied further in this research. This literature review has sought to reveal the prominent themes in the literature around corruption and bribery for the purpose of creating a background for the research study. The prominent theme is that there is a greater recognition of private corruption, of which bribery is an important part. This can be linked to legal responses in the two jurisdictions.

Bibliography

Books

OECD, Phase 3 Report on Implementing the OECD Anti-Bribery Convention in the United States (OECD 2010) 63.
Mike Koehler, ‘Measuring the Impact of Non-Prosecution and Deferred Prosecution Agreements on Foreign Corrupt Practices Act Enforcement’ (2015) UCDL Rev. 497, 525.

criminology of white-collar crime (New York: Springer 2009).

Caiden G, ‘Foreword’ in G. d. Graaf, P. v. Maravic and P. Wagenaar (eds), The good cause: Theoretical perspectives on corruption (Opladen and Farmington Hills: Barbara Budrich Publishers 2010).

Graaf GD, Maravic PV, Wagenaar P, ‘Introduction: Causes of corruption-the right question or the right perspective?’ in The good cause: Theoretical perspectives on corruption (Opladen and Farmington Hills: Barbara Budrich Publishers 2010).

Lilly R, Cullen FT, and Ball RA, Criminological theory: Context and consequences (Sage 2010).

Obidairo S, Transnational corruption and corporations: Regulating bribery through corporate liability (Oxon: Routledge 2016).

OECD, Phase 3 Report on Implementing the OECD Anti-Bribery Convention in the United States (OECD 2010).

Rose-Ackerman S, Corruption: A study in political economy (New York: Academic Press 1978).

Ugwudike P, An Introduction to critical criminology (Bristol: Policy Press 2015).

World Bank, Helping Countries Combat Corruption: The Role of the World Bank (Washington, DC: World Bank Group 1997).

Journals

Breit E, Lennerfors TT, Olaison L, ‘Critiquing corruption: A turn to theory’ (2015) Ephemera: Theory and Politics in Organization 319.

Brown E and Cloke J, ‘Critical perspectives on corruption: an overview’ (2011) Critical perspectives on international business 116

Everett J, Neu D, Rahaman R, ‘The global fight against corruption: A foucaultian, virtue-ethics framing’ (2006) 65 (1) Journal of Business Ethics 1.

Koehler M, ‘Measuring the Impact of Non-Prosecution and Deferred Prosecution Agreements on Foreign Corrupt Practices Act Enforcement’ (2015) UCDL Rev. 497.

Lennerfors TT, ‘The sublime object of corruption: Exploring the relevance of a psychoanalytical two-bodies doctrine for understanding corruption’ in Ethics and organizational practice: Questioning the moral foundations of management (Cheltenham: Edward Elgar 2010).

Rose C, 'The UK Bribery Act 2010 and Accompanying Guidance: Belated Implementation of the OECD Anti-Bribery Convention' (2012) 61 (2) International & Comparative Law Quarterly 485.

Rothstein B,’ Anti-corruption: the indirect ‘big bang’ approach’ (2011) Review of International Political Economy 228.

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