White collar crime is in vogue. Although there are investigations and prosecutions throughout the country at any given time in which individuals and businesses are charged with corporate wrongdoing, 2002 and 2003 will likely be high-water marks for such cases. The reasons for the increase are obvious. Police and prosecutors respond most quickly when there are victims of criminal wrongdoing - the greater the harm and the greater the number of victims, the greater the priority given by law enforcement. When businesses flourish, profits are high, unemployment is low, and bankruptcies are sporadic, the conduct of businesses (including misconduct) is masked by economic success. Conversely, when companies fail, markets drop, layoffs are widespread, and Chapter 11 becomes common, the conduct which caused or contributed to such failures are examined closely under the law enforcement microscope. This is such an era. Corporate crime has become a central topic on the business pages, cable channels, in periodicals, and throughout the media. Two-thousand two was the year Americans became versed in the failures that surrounded companies such as Enron Corporation, Worldcom, Inc., Adelphia Communications Corporation, Imclone Systems Inc., and Tyco International, Ltd. In 2003, the trend has continued as there are investigations concerning the financial dealings of AOL-Time Warner, Healthsouth Corp. and Tenet Healthcare, to name just a few.
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Law enforcement officials often face a dilemma in addressing the leaders of companies in which there appears to be wrongdoing. These are the most visible figures, and they often have incurred the greatest benefits and rewards for the activities that prosecutors will allege violated the law. As high-level corporate officials, however, they often are not the business directors or officers involved in the actual conduct under scrutiny. Clearly, if a corporate official herself orders a false entry, diverts a corporate asset, or engages in an inside security trade, that official can be prosecuted under normal statutes with their general requirements for knowledge, intent, and conduct. However, the suspicion is often that these officials may have stood by, aware of (or even tacitly encouraging) the wrongdoing, while employees lower on the totem pole carried out the bad acts. Law enforcement officials want high-level individuals to answer for the company's illegal activity, arguing this will have the largest impact on corporate wrongdoing and create the deepest deterrent against future conduct. Even with the removal of the requirement that an offense be proven to have been "willful,"29 it is still often difficult for a prosecutor to prove that the highest corporate officials were involved if they sat on the corporate sidelines.
Even before SOA made changes in the law of intent, prosecutors had been seeking and courts had been crafting rulings to develop theories under which high-level corporate officials could be charged with serious corporate offenses, even if they only stood by in ignorance of the company's actions. Prosecutors have used the theory of "conscious avoidance," known alternatively as "willful blindness," or "deliberate ignorance," as a primary tool for combating corporate crime.
Doc view 5: hate crimes
Hate Crime can be defined as that section of criminal behaviour that is motivated by the victim's membership or perceived membership of a particular group. Victims are commonly targeted on the basis of their ethnicity, sexual orientation, gender identity, faith or a disability. In some instances legislation exists to prohibit it, for example the specific offence of 'Inciting Racial Hatred'. In other cases, where hatred is contributory in the commission of a more generic offence, for example a criminal assault, it is regarded as an aggravating factor, and is thus accorded greater priority in its investigation. A successful prosecution can result in greater sanctions against the person convicted. However, it is a reality of the UK criminal justice system that not all hate crime is reported, not all of that reported is recognised for what it is, and not all of that recognised is recorded or prosecuted as such. One reason to recognize hate crime as a category is that police become required to gain an understanding of it, to measure the size and nature of the problem. Walklate (2005:33) refers to 'the three 'R's: recognising, reporting and recording' of crime. She points out some difficulties of gathering an accurate picture of what crime is occurring. In particular not all hate crime that occurs is recognised as crime, not all crime recognised as such is reported to the police, and not all crime reported to the police is recorded as such.
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In the police service, crimes are recorded through more than a single process. In those cases attended by a police officer, the victim or person reporting is questioned about the circumstances. Through this conversation and the investigation that follows, a party may suggest the presence of a hate motive, or through investigatory work, the officer may come to suspect and then confirm it. In these situations, motives are recorded on the Crime Management System, an electronic tracking system and database, so cases can then be recognised as hate crimes. Of course, not all reports of crimes attended by officers are successfully recognised as hate crimes. (Purdy 2007:10) Sometimes the motive is simply concealed, and may never be identified, either by victim, witness or officer. In others, one or more parties may suspect the motive, but that suspicion may go unvoiced (Gerstenfeld, 2004).
One barrier to effective recording lies in the design of the electronic form used to populate the Crime Management System database. Purdy (2007:24) describes how the field for recording the offender's motive makes use of codes drawn from a list. Before 2007, the list only recognised hate motives based upon the dimensions of ethnicity, sexual orientation and faith. The recent additions of transphobia (crimes against people with transgender characteristics) and disability to the list have been accompanied by limited publicity, which may mean that the awareness of the workforce is incomplete in this regard.
A challenge specific, but not exclusive, to crimes committed against people with disabilities is in working out whether the motive of the offender is based on hatred, or whether instead the offender merely took advantage of a real or perceived extra vulnerability accompanying the disability. In these and other situations, as Bell (2002) suggests, the Crown Prosecution Service may elect to deal with the crime in its generic form and not as a hate crime. For example, where an offender causes damage to a car owned by a member of a faith group against which she holds hatred, if sufficient evidence is present to prove the identity of the offender but not her motive, then it is entirely likely that she will be charged with the generic offence of 'criminal damage'. This may be preferred to the more appropriate hate crime charge of 'Racially or religiously aggravated criminal damage' owing to the greater ease of proving the generic offence. In such a situation the crime record is unlikely to be included in hate crime statistics, as it is the charge type, rather than an unproven motive, that is more likely to determine how the case is recorded. In these circumstances, for purposes of performance management, a generic crime with which a person has been charged will be regarded as a positive outcome, even if the offence charged does not reflect the entirety of the crime's events.
Where the crime charged is a hate crime by its tide, the challenge of recognition is lessened. An example is the offence of 'Using Words or Behaviour intended to stir up Racial Hatred'. This crime exists in legislation, so whenever a suspect is charged with the offence, it is commonly recorded, and included in the statistics.
Some crimes are reported by telephone to the Crime Recording Bureau. For example, cases of minor damage in which no evidence to help identify an offender is readily available may never be attended by an officer, but simply recorded for statistical and crime intelligence purposes. An example is damage reported only in order to fulfil a condition of claiming against an insurance policy. In these cases, call handlers question the caller about the circumstances, but recognition of a hate motive depends entirely upon what information the caller provides. As these calls are script-free (that is, callers are asked to describe the circumstances in their own words, rather than being interrogated through use of a standard template of approved questions), the call handler may or may not ask those questions necessary to elicit the specific suggestion of the presence of a hate motive.
Some crimes are recorded from third party reporting facilities. Such schemes are increasingly used where crimes are committed against people who have something to lose by reporting the matter to the police. Examples include people who conceal their sexuality, or who secredy use sex workers, and who become victims in circumstances that mean standard reporting measures would compromise anonymity or 'out' them. Third party reports generally involve a form or template to be completed with some assurance of confidentiality of the victim's identity. They do tend to solicit information about the suspected motive of the offender, and can therefore achieve inclusion in hate crime statistics, though it does not follow that such is always the case.
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A barrier to the broader recognition of hate crime lies in its origins as a category. As Hall (2005:52) describes, the Lawrence inquiry and its subsequent report by Sir William Macpherson (1999) led to intense criticism of the Metropolitan Police accompanied by considerable media and public attention. Latterly, a series of related reports and action plans (e.g. Winning the Race (1997), Winning the Race Revisited (1999) Winning the Race: Embracing Diversity (2001)) have served to preserve the link in the police service conscience between hate crime and racism. This suggestion is reinforced by the findings by Purdy (2007) that, among a sample of hate crimes recorded by South Yorkshire Police during 2007, more than ninety-eight per cent (98.5%) were cases of race hate.
Crimes with race-based motives seem the most likely, therefore, to be recognised as hate crime. Purdy (2007:5) describes how no cases of disability-based hate crime were recorded in South Yorkshire Police during a six-month period of 2007. The inequity of this situation seems to be compounded by the limitations of the criminal law and the advisory bodies concerned. For example, the offence of 'Using words or behaviour intended to stir up racial hatred' exists to address the dimension of racism, but no similar offence exists for dimensions such as sexual orientation, disability or gender identity. Inevitably, such omissions fuel allegations that race hate crime is given special priority by law-makers to the detriment of members of other disadvantaged groups. Also, guidance released by ACPO (2007: 10) prescribed that crimes with a hate motive based upon the dimension of age (e.g. the victim is made a target owing to being elderly) or gender (e.g. the victim is attacked owing to being a woman) do not meet the definition of hate crime, and should not be recorded as such. The same document excludes violence carried out in a domestic setting (e.g. between husband and wife or civil partners).
Doc view 8: Environmental crimes
The criminal provisions of nearly all of the statutes addressed in this article are enforced by the EPA in conjunction with the Department of Justice ("DOJ"). However, the ESA is enforced by the Department of Interior ("DOI"). The EPA's stated policy is to conduct criminal investigations only in cases where both significant environmental harm and culpable conduct are present.16 However, the EPA may recommend against prosecution of criminal violations if the violating entity has voluntarily disclosed the violations prior to any EPA-initiated investigation. In enforcing the environmental statutes, the EPA emphasizes cooperation with other administrative agencies and focuses on select national enforcement priorities that are revised on a bi-annual basis. Since states have the primary responsibility for implementing many federal environmental laws, a significant amount of enforcement activity takes place at the state level and must be coordinated with federal enforcement efforts. The DOJ's policy provides for a flexible approach to enforcement. In deciding whether to prosecute violations of federal environmental statutes, the department may consider several factors, including: (i) voluntary disclosure; (ii) the degree and timeliness of cooperation; (iii) preventive measures and compliance programs; (iv) pervasive non-compliance; (v) disciplinary systems to punish employees who violate compliance policies; and (vi) subsequent compliance efforts. These factors are intended "to encourage self-auditing, self-policing, and voluntary disclosure of environmental violations." General criminal statutes can serve as alternative bases for prosecution of environmental crimes. Prosecution of environmental offenses may be pursued under general criminal statutes which provide for harsher penalties than the applicable environmental statute.24 Prosecutors choosing this path generally append environmental criminal offenses as additional charges. Although criminal provisions vary among statutes, the basic elements of environmental criminal violations are (i) an act that substantively violates a statute and (ii) an intent to so violate the statute. Common acts that constitute substantive criminal violations include making false statements, failing to file required reports, failing to pay required fees, operating without a permit, and violating the limits or conditions of a permit. To be convicted of a violation, the environmental criminal provisions generally require a mens rea of "knowing;" however, some statutes do have provisions for negligent violations. The courts have declined to interpret this element to require knowledge that conduct is unlawful; instead, a defendant need only have knowledge of the discharge of a pollutant.