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Economic crime is a serious challenge to business leaders, government officials and private individuals in South Africa. Given the important role of law enforcement, prosecution and sentencing in deterring economic crimes, the purpose of this paper is to determine if law enforcement, prosecution and sentencing practices are deemed to be adequate in South Africa.

Primary data from Web-based and manual questionnaires were used to empirically analyse the perceptions of sentenced economic crime offenders and role-players regarding the statement that law enforcement and prosecution practices of economic crimes relating to fraud, corruption or tax evasion in South Africa are not adequate. The final realised sample included a total of 345 from the various populations of key role-players and a total of 82 economic crime offenders from a Gauteng-based correctional institution. Mann–Whitney U tests were used to test for significant differences between the views of role-players and economic crime offenders.

The majority of both groups of respondents is of the opinion that law enforcement, prosecution and sentencing practices in South Africa are not adequate with regard to economic crime offences, although statistically significant differences exist in the degree of agreement. The challenge is therefore to prosecute more economic crime offenders by improving law enforcement, prosecution and sentencing practices. The study also revealed that people have a reluctance to speak out about fraud, corruption or tax evasion or to report such offences for various reasons.

The research assisted in identifying the challenges economic crime presents and the shortcomings in current law enforcement, prosecution and sentencing practices in South Africa.

‘Recovering the Proceeds of Crime’, a report by the Performance and Innovation Unit of the Cabinet Office, observed that, historically, there have been very few prosecutions for money laundering in England and Wales. Indeed, in the 12‐year period 1987 to 1998, there were only 357 prosecutions. By way of comparison, in 1995 there were 2,034 prosecutions for money laundering in the USA alone. Given that it is generally accepted there is a significant amount of money laundering in the UK, why is the number of prosecutions so low? There are, arguably, four principal factors which have an impact on the prosecution rate for any criminal offence and each of the four affects the prosecution rate for money laundering.

Using the ethical consequentialist theory of utilitarianism, this paper aims to demonstrate the correlation between the prosecution of Arthur Andersen LLP and the United States Department of Justice’s (DOJ) increased use of pretrial diversion agreements, both nonprosecution and deferred prosecution agreements (N/DPA) for criminal corporations.

Through an analysis of previous literature, the United States Justice Manual, and data from the Corporate Prosecution Registry, this study examines the trend of N/DPAs from 1992 to 2021. Specifically, the data is examined to assess whether a pattern exists before and after the 2002 prosecution of Andersen.

This study finds an exponential increase of N/DPAs after Andersen’s prosecution. The DOJ’s basis for the increased use of these agreements is rooted in the utilitarian theory that the punishment of criminal corporations should deter and rehabilitate behavior while also maximizing the benefit to society (e.g. shareholders, employees and business community). The justice manual, memorandums and public speeches explicitly promote the use of N/DPAs for corporations to minimize collateral damage and the potential for negative societal impact.

This study applies a utilitarian framework to explain the criminal justice system’s increased use of pretrial diversion agreements for criminal corporations.

Deferred prosecution agreements (DPAs) are the tool of choice for federal prosecutors when adjudicating corporate misconduct. A DPA is a negotiation that permits the allegedly guilty party from undergoing a criminal trial if they avoid committing further wrongdoing for a specified period. This paper aims to examine whether DPAs are a beneficial mechanism for the criminal justice system to use while adjudicating corporate misconduct. By conducting in-depth semi-structured qualitative interviews with 24 practitioners in the legal field and white-collar crime experts, this study identifies the shortcomings and advantages of DPAs and highlights what policy enactments might enhance their application. The study contributes to the existing literature by expanding the narratives used by judicial officials, legal practitioners and white-collar crime scholars on the role of DPAs.

The current study is an in-depth qualitative analysis that explores judicial actors’ and white-collar crime scholars’ opinions on the adoption of DPAs to adjudicate corporate misconduct. The literature on DPAs is currently derived primarily from law and literature reviews published by legal scholars. Clandestine negotiations are not accessible to the public and are frequently kept in sealed files unless a breach of contract occurs, resulting in the case proceeding to trial. Hence, a qualitative analysis is the best approach to evaluate the effectiveness of DPAs. Further, little evidence is available that focuses on the opinions of professionals who have participated in these agreements. The interviews were conducted over Zoom and lasted an average of 43 min, with the longest interview spanning 1 h and 45 min and the shortest interview being 14 minutes. A non-probability sampling method – specifically, snowball sampling – was used to generate a total sample of 24 legal professionals and white-collar crime scholars. Initial participants were found by contacting law offices specializing in white-collar crime litigation and using current networks to attain access to a broader range of participants. Then, 19 participants provided referrals throughout the study. The final sample consisted of nine government officials, eight legal practitioners and seven white-collar crime academics experts. One of the government official interviews was excluded from the final research project due to a lack of expertise in the field of white-collar crime. The interview questions were designed to promote in-depth conversation and insight into personal opinions on the adoption of DPAs. Several inquiries highlighted whether DPAs are an appropriate response to corporate misconduct and whether they reduced recidivism through their intended deterrent effect. Furthermore, several descriptive questions sought to understand which criminal justice actors support the adoption of DPAs in white-collar crime cases and why. Coding of the data was first conducted individually by each author. The researchers then compared thematic findings that reflected consensus.

An immediate theme identifiable in the research is the intrinsic value that DPAs offer in adjudicating corporate wrongdoing. As indicated by a participant, corporate misconduct is not “black or white,” stressing the importance of prosecutors having a middle ground between criminal prosecution and the dismissal of charges. A judicial official indicated that “DPAs are another essential arrow in a prosecutor’s quiver – and something a defense attorney can bargain for” (Respondent 5). Seven government officials and legal practitioners noted that you are unable to send a corporation to jail, and you do not simply want to put them out of business; thus, a DPA is the only tool in which the government can mandate structural change in a company without dismantling the entire entity. Only three academics concurred with the government officials and legal practitioners that DPAs are beneficial and offer prosecutors a vital middle ground. One academic, for example, stated that “DPAs have given U.S Attorney offices that ability to be involved for a considerable amount of time in a company's business, while simultaneously promoting change within the entity” (Respondent 14). Additionally, DPAs ensure that corporations are held criminally liable without triggering an endless cycle of collateral consequences for innocent third parties. One legal practitioner, for example, stated: “Just look at the Enron case; they charged Arthur Andersen with obstruction of justice and dismantled the entire entity they made it where the business was never going to come back. A small subset of individuals, in this case, should have been held responsible but instead, hundreds and if not thousands of people were harmed. With this in mind, DPAs are extremely important, in that it limits collateral consequences because DPAs take a more holistic view that criminal prosecution does not consider” (Respondent 21). Another respondent highlighted that “DPAs are the only tool available that can be employed to change an entire organization structurally” (Respondent 20). Ultimately, the findings suggest that there is a consensus among respondents that DPAs are an appropriate response to corporate misconduct, particularly when the agreement stipulates that a company must hire an external compliance monitor and update their current compliance system. Overall, participants emphasized that these stipulations promote a sense of corporate accountability, provide for the dismissal of guilty employees and mandate structural change. The majority of the respondents (n = 20) insisted that DPAs are advantageous, yet a subset of participants were skeptical of their use in white-collar crime prosecutions. One legal practitioner, for example, noted that “DPAs are political creatures that are awarded as political favors to the largest of corporations that our economy relies upon” (Respondent 17). Another government official confirmed this statement, indicating that “DPAs are a mere slap on the wrist for large corporations – they simply see it as doing business” (Respondent 6). Four academic participants emphasized that DPAs are typically negotiated with multi-level corporations and are not extended to the small businesses that suffer the dire consequences of criminal prosecution. One academic, for instance, stressed that “the question becomes is it fairly applied and being implemented properly. Larger companies are more likely to receive and benefit from a DPA, thus, raising the question of fairness” (Respondent 12). Another academic who was previously a government official stated: “DPAs risk abuse – there have been several instances where prosecutors have forced companies to donate money to favored charities and overstepped their powers. Sometimes DPAs also come with monitors. For example, banks typically have to pay for the auditor, and it becomes extremely intrusive, and it it not clear that they are efficient.”

Several limitations exist in this research. First, it is not a comprehensive study that is representative of the larger population, which limits generalizability. Given the contention of research on DPAs, this qualitative research contributes to the literature, and its findings are likely transferable to multiple settings in which DPAs are used. Second, DPAs are processed and drafted differently across jurisdictions; thus, comparing DPAs across state levels and among departments in the federal government would be equivalent to comparing apples to oranges. This comparison is yet another limitation to the study because criminal justice practitioners operate in both the state and federal jurisdictions. Another challenge in the current study and something that likely will be a problem for future researchers is the difficulty of gaining access to experts in an exclusive field of criminal justice, such as federal prosecutors, Department of Justice officials, federal judges and elite corporate defense attorneys. Ultimately, several obstacles arose during the study, particularly when recruiting participants to gain a large enough sample size to conduct meaningful analysis. This resulted in smaller sample size but rich, in-depth data that achieved saturation among participants.

Several policy implications are identifiable. First, it appears that DPAs are a mainstay of white-collar crime prosecution. No participants advocate for their complete removal from the prosecution process. Participants highlight that DPAs occupy an essential middle-ground between dismissal and criminal charges. Without this mechanism, prosecution would be impeded, and holding corporate criminal actors liable would increasingly become formidable. Although it appears that the system cannot function without DPAs, several respondents emphasize that we must begin to hold individuals accountable alongside corporations. Another policy implication that a minority of participants mentioned within the study involves ensuring that our compliance monitoring system operates appropriately. A majority of participants note that the overarching stipulation that promotes structural change within an organization is adopting a functioning compliance monitoring system, thus, emphasizing the importance of this process operating smoothly and ethically. The selection of an independent compliance monitor may be problematic. For example, a former government compliance monitor notes that not all monitors are experts in the field they are overseeing. A pharmaceutical expert, for example, may be attempting to regulate an automotive organization, which may present unique challenges. An agency of federal professionals dedicated to supervising specific industries such as automotive, pharmaceutical and financial would ensure that organizations are actually implementing the terms of the DPA.

Ultimately, the current research highlights the necessity of empirically studying the benefits and drawbacks of such agreements. Future research on the topic remains onerous due to the scarcity of a centralized database that contains extensive details of DPAs. The present study suggests that the verdict on DPAs is undecided, with more than half of the study's criminal justice professionals advocating for their continued and even increased use. However, about half of the participants, particularly academics, called attention to the agreements’ potential bias. The disagreement among participants is most contentious in the consideration of a DPA centralized database which would immensely aid future research and policy advancements.

Prosecutions under Criminal Law, associated in the minds of most people with “criminal offences” of a serious nature—“crime” in the traditional sense—and undertaken by the police authorities, constitute a very large and rather untidy body of public law. It includes a large and constantly growing number of offences in respect of which prosecutions are undertaken by various corporate bodies who, as in the case of local authorities, have a duty albeit with a power of discretion, to prosecute. There would appear to be little in common between such offences, as smoking in the presence of open food or failing to provide soap, nail‐brushes, etc, for food handlers, and the villainy and violence of the criminal, but their misdeeds are all criminal offences and subject to the same law. Other countries, such as France, have definite Criminal Codes and these offences against statutes and statutory instruments which in English Law are dealt with in the broad field of Criminal Law, are subject to special administrative procedure. It has obvious advantages. Although in England and Wales, prosecutions are undertaken by police authorities, local authorities, public corporations, even professional bodies and private individuals, with a few statutory exceptions for which the Attorney‐General's fiat or consent of the Director of Public Prosecutions is necessary, may instigate a prosecution against anyone if he can provide prima facie evidence to support it. In Scotland, prosecutions are instituted at the instigation of the various authorities by an officer, the Procurator‐Fiscal. Many advocate such a system for England and Wales, despite the enormous difference in the volume of litigation. Supervision of prosecutions on a much smaller scale is by the Director of Public Prosecutions, an office created in 1879, with power to institute and carry on criminal proceedings—this is the less significant of his duties, the number of such prosecutions usually being only several thousands per year—the most important being to advise and assist chief officers of police, clerks to the magistrates and any others concerned with criminal proceedings Regulations govern the cases in which DPP may act, mainly cases of public interest. The enormous growth of summary jurisdiction over the years, especially that arising from so‐called secondary legislation, is largely outside his sphere.

A successful prosecution for a criminal offence requires a prosecuting authority to prove beyond a reasonable doubt that a defendant possessed the requisite mens rea, or mental state, and that at that time he also committed the actus reus of the offence, that is to say those elements of the crime apart from the mental element. One of the most common features of the actus reus of money‐laundering offences across different legal jurisdictions is that the prosecution usually has to prove, inter alia, that the property which was the subject of the transaction was, as a matter of fact, the proceeds of crime. Some variations will however occur, in that in certain jurisdictions there may be a requirement to prove that the property is the proceeds of a particular predicate offence; in others it may be sufficient to prove that the property is derived from any form of criminal conduct. This paper examines the ways in which law enforcement authorities have attempted to prove this clement of a laundering offence, and concludes by making some suggestions for alleviating the difficulties inherent in doing so. Given that there have been relatively few convictions for money laundering in the UK, many of the examples are drawn from other jurisdictions, some of which have much greater experience of such prosecutions. Occasional examples are also drawn from civil forfeiture cases. While the standard of proof in such cases is that applicable in civil proceedings rather than the criminal standard applicable in money‐laundering prosecutions, such cases may nevertheless be useful so as to see the type of evidence adduced before the courts in order to prove that property is the proceeds of crime.

The paper aims to demonstrate the causes of failure of some fraud prosecutions.

The paper provides a review of common contexts within which prosecutions of allegations of fraud are brought and discussion of the factors which influence the prosecutor, the investigator, the defence, the trial judge and the fact‐finders.

Several factors are common to many fraud prosecutions which, taken together, make these cases difficult to try and to obtain convictions. Many fraud prosecutions fail because the egregious length of the investigation and trial process jeopardises the mental health of some defendants, preventing them from being tried at all. The mass of documentary evidence adduced can cloud the key issue of dishonesty. Excessive splitting up and “pruning” of the case with a view to making the trial shorter may obscure the essential elements of the case. Effective management of the trial process is sometimes lacking. Presentation of complex facts and egregious amounts of documentation to a lay jury can contribute to the inordinate length of the case and the proposition is made that an alternative tribunal, without a lay jury, may eliminate many of the factors which contribute to the failure of major fraud trials.

The conclusion is drawn that tribunals sitting without juries would have the effect of shortening the trial without lessening public confidence in the criminal justice system in this very limited class of case.

The paper draws together several key factors found in the author's experience as Director the Serious Fraud Office and as Chairman of the Fraud Advisory Panel which distinguish fraud prosecutions from any other types of criminal case and provides leads for improving future prosecution and trial technique.

This study aims to investigate the impact of the enforcement of the international anti-bribery legal framework in developing countries.

It uses the PetroTiger case to examine the effects of foreign bribery prosecutions in Colombia, from a bribe-receivers perspective. PetroTiger is a USA-based company that was prosecuted for bribing public officials in Colombia. As a result, the public officials involved were also prosecuted in Colombia for receiving bribes. This case serves to illustrate how international anti-bribery law operates in practice and how it impacts Colombian law enforcement institutions and their capacity to prosecute bribe-receivers. The Colombian response to the international anti-corruption framework is examined in this study through the review of legislative efforts taken to address the problems of bribery and corruption in public procurement.

This study finds that enforcement of foreign bribery laws raise awareness of the situation of corruption in developing countries, generate parallel prosecutions of individuals at the receiving end of bribes and helps developing countries to develop technical expertise to fight corruption.

In practice, due to the transnational nature of foreign bribery, without international agreements, this type of corruption in international business would seldom lead to prosecution. Although the effectiveness of the enforcement of international anti-corruption law is debated, in reality, prosecutions of foreign bribery by developed countries have more positive than negative implications for developing countries.

Assist to continue efforts to deter corruption.

No many studies have looked at the effectiveness of anti-corruption international law in developing countries. As indicated by Mr. Moulette Patrick head of Anti-Corruption Division at organisation for economic co-operation and development more research on the effectiveness of the UN enacted Convention against Corruption, which is what this paper does.

This study aims to analyze corporate mail and wire fraud penalties, using bounded rationality in decision-making and assessing internal and external influences on prosecutorial choices.

The study analyzed 467 cases from 1992 to 2019, using data from the Corporate Prosecution Registry of the University of Virginia School of Law and Duke University School of Law. It examined corporations facing mail and wire fraud charges and other fraud crimes. Multiple regression linked predictor variables to the dependent variable, total payment.

The study found that corporate penalties tend to be lower for financial institutions or corporations in countries with US free trade agreements. Conversely, penalties are higher when the company is a U.S. public company or filed in districts with more pending criminal cases.

This study’s originality lies in applying the bounded rationality model to assess corporate prosecutorial decisions, unveiling external factors’ influence on corporate penalties.

This paper seeks to explain the jury’s verdict of acquittal in the bizarre case of eccentric millionaire Robert Durst, who was charged with the murder of Morris Black after Black’s body parts were found floating in Galveston Bay off the coast of Texas. Though an analysis of a portion of the defense’ closing argument, this paper examines the Durst defense team’s strategy of directing the jury’s attention to a single event – the confrontation that resulted in Black’s death – in order to effect a shift in focus that allowed them to use “reasonable doubt” to leverage their argument that the prosecution had not met its burden of proof. This paper demonstrates how this strategy acted to construct the “unreasonable doubt” that resulted in the jury’s verdict.