The term White Collar Crimes (WCC) was propounded by a famous criminologist and sociologist Edwin H. Sutherland in the year 1939. The idea behind this new term was that – Necessity is not always the motive behind commission of a crime.In other words, he wanted to categorize certain types of crimes that are committed in a society without being any necessity for the criminal to commit it. here are the Top 7 Psychological Hurdles Faced While Prosecuting White Collar Crimes
Following are certain key features of a WCC:
1. It is basically a crime that is committed by salaried professional workers or persons in business and usually involves a form of financial theft or fraud.
2. These crimes are non-violent crimes committed by business people through deceptive activities who are able to access large amounts of money for the purpose of financial gain.
3. They are committed by people who are involved in otherwise, lawful businesses and cover a wide range of activities.
4. The perpetrators hold respectable positions in the communities unless their crime is discovered and
5. The law relating to these crimes would depend upon the exact nature of the crime committed.
In the research article, the researcher would be discussing about the various psychological hurdles that are faced while prosecuting these white collar criminals.
Now, we will be discussing the various reasons or the various hurdles that are faced while prosecuting these White Collar Criminals. There are certain problems that are common to all the stages of a prosecution whereas there are certain problems that are specific to one stage of a prosecution. For this, the researcher has divided the problems on the basis of the various stages of a prosecution and following are the stages:
1. Pre investigation
First of all, the researcher would be dealing with the problems that are common to all the stages of prosecution.
Following are the common problems:
1. Criminals being part of the system:
These type of criminals are different from the traditional criminals. They are part of the system or the group that is entrusted for making or implementing laws relating to these WCC or are in close connection with these people. Therefore, they are in a position to mould or shape the system that is favourable to them. Hence, leading to favourable laws for them, lesser punishments, delayed investigation or delayed trial etc.. Also, they are in a position to influence the victims as well for non filing complaint by threatening them of unwanted consequences.
2. Fear in the minds of the people, be it the victim, witnesses, the investigating agency and everyone involved in the prosecution process:
In these WCC, the criminal belongs to the upper strata of the society, due to which the people in general are in fear of saying or doing anything against them. People here would include the victim while filing a complaint, the witnesses investigated involved during the investigation, the investigating agency and even the court has the fear of deciding against these people due to the high status or repute of such criminals.
The fear sometimes is not limited to the victim but his family as well, due to these circumstances a lot of white collar criminals are left unpunished.
3. Lack of awareness:
These WCC are committed within the strict letter of the law or at such level that the common people are not even aware of the commission of such crimes. The irony of the situation is that “the credibility of the victim is affected and he is not even aware of it”. It is because they are not aware, a lot of cases are not even filed against such criminals.
4. Legislative gridlock:
The WCC involve a huge amount of money and when the national economy is at stake, politics very often play a role. With politicians divided as they currently are, getting anything accomplished can be difficult. There is a lot of back and forth between politicians about how to proceed with prosecuting such crimes, how much of a role the government should play and what the penalties should be. The result—resolution takes months, if not years because of the gridlock.
Due to the non stricter laws, absence of any time deadlines for the investigation and trial of the case. The Legal battles take years in punishing the criminals and hence leading to diffusion of gravity of the offence with time.
6. Lesser impact on individual person:
The impact of white collar crimes is so much diffused in the community that the individual victims are only marginally affected by it, and therefore they conveniently forget all about it. Due to the lesser impact, people easily forget about it and are not much concerned about what happen to the trial and the criminal proving a room for the criminal to escape.
7. The prevailing HONESTY in the system:
This is also one of the major factors that lead to the unpunished White Collar Criminal. The Indian system is not at all honest and can be bribed very easily and the criminal can make everything in his favour. He can bribe the witnesses, the investigating agency or even the prosecuting agency, in such a scenario, it is very difficult for punishing such criminals.
Now, the researcher would be dealing with the factors that are specific to particular stages of the prosecution one by one: 1. Pre Investigation:
This stage basically is concerned with the victims who have to file a complaint against these white collar criminals so that the whole process of prosecuting them can start. There are a lot of impediments at this only some are created by the white collar criminals, others by the system and some by the victims themselves.
# First comes the impediment created by the victims. Victims are themselves not interested in filing such complaints as they are not directly related with these crimes. Also, they have this fear of complaining against the powerful in their heads and have a fear that this can adversely affect them or their family. Also, in some of the WCC they themselves have contributed, due to which they are less interested in filing complaints against such WCC.
At times, the member of community themselves contribute to the commission of various white collar crimes willingly or unwillingly. For instance illegal gratification to public servant to get the work done quickly, black marketing in time of scarcity, evasive price violation, rent ceiling violation etc…. are some of the common examples where victims of the crime are themselves to be blamed for involvement in white collar criminality. In fact such crimes cannot be committed unless there is demand for illegal favour from consumers and they are actively involved in the deal.
When they have contributed to the commission, they are not interested in prosecuting the White Collar Criminal and hence no complaints are filed against them.
# Next comes the impediments created by the white collar criminals. He plays a very important role in non filing of the complaints by the victims. His reputation and the high status acts as a passive impediment whereas his direct involvement acts as an active impediment. He directly tries to influence the victims or the complainants for not filing the complaints either by illegal gratification or by some kind of thread to his body or property.
# Next are the impediments created by the system. Indian legal system is such that it creates a lot of impediments for the victim to stand against a white collar criminal. Some of the impediments are delayed justice, favourable laws, dishonesty etc.
Even though these are very big obstacles or fears in the mind of the victims or the complainants while raising a voice against these white collar criminals. However, the government had tried to formulate such laws that the victims can freely file the complaints them and have no fear in their minds while complaining. One such example of the initiative is THE WHISTLE BLOWERS PROTECTION ACT, 2014. Under this act protection is given the various people called the whistleblowers for alarming against such white collar criminals.
There are certain specific problems with respect to this stage of investigation as well. Following are those problems:
# The first one relates to the investigating agency. The problem in this case is again the impact on the investigating agency or the fear in the minds of the investigating agency. As we have already discussed that these white collar criminals are very influential and are part of the system as well. Due to this fact, the investigating agency is also fearful of doing their work or investigation in a proper manner. They are in a fear or concluding the investigation against the influential the white collar criminal. We all know that investigation plays a very important part in the trial. Therefore, if the investigation is faulty or is in favour of the white collar criminal, the case would itself loose its hold at the trial stage, leading the criminal unpunished.
# The second one relates to the witnesses. The same problem of fear and impact comes into picture in case of witnesses as well. The witnesses are generally not interested in giving any evidence against the white collar criminal, him being a very influential person. Due to this, the evidence available against the white collar criminal weakens and weakens the investigation as well.
· The third problem relates to the tampering of evidence or important materials. Investigation takes a lot of time, due to which the accused gets a lot of time for tampering of the evidences and influencing the witnesses not to give any statement against him. Due to the delay or time taken for investigation, there is a scope of tampering as well and this tampering is obviously done in such a way that it leads the investigation in wrong directions or in favour of the accused.
This is all about the impediments at the investigation stage.
This stage includes certain impediments as well. There are certain impediments that are similar to earlier stages, whereas there are certain impediments that are specific to this stage only.
Following are the 2 specific impediments with respect to this stage:
# The first one relates to hostility of witnesses. The white collar criminals are so influential that first of all no one is ready to be a witness against him and if someone is ready to be witness against him, there are a lot of chances that during the trial he goes hostile and if he goes hostile the whole prosecution case would collapse and hence leading to the acquittal of the accused, the white collar criminal.
Now, one important question that arises is that why a witness would go hostile? There can be a number of reasons as to why the witnesses go hostile, one such reason being the threat he would have received for giving any statement against the accused. In WCC, the accused being the influential person, this is the most important and probable reason for going a witness hostile in the trial against a white collar criminal.
# The second one relates to probability of dishonest intentions of the prosecution. These white collar criminals or the accused of these WCC are so influential that even the prosecution is not interested in getting him convicted. Even he is in favour or side of the accused. Even if he is not in the favour of the accused wilfully, he is made not to do his job properly so that the accused is not acquitted and the charges against him are either dismissed or set aside.
These are certain specific impediments with respect to the stage of trial that comes to the way of detecting a WCC and punishing the accused of such WCC.
Now, comes the final stage i.e. the conviction part or the judgement part. This is the last stage of a trial, only few cases of the total WCC committed reach to this stage.
To this stage as well there are certain specific impediments that come the way of punishing the accused of a WCC:
# The first problem with respect to the conviction stage is the sympathy of the judge towards the accused of the WCC. The accused of such crimes and the judges all form part of the same class, therefore the judges are a bit reluctant in sentencing these accused to a very high punishment. Even if we imagine that the judge is so honest and that the judge is not at all sympathetic towards the accused, even then there can be a lot of circumstances where that judge has to face a lot of pressure from the high fraternity of not convicting such accused. The result of all such scenario is that the accused of such WCC goes unpunished.
· The second problem or impediment that the courts face at this is the Lack of material on record or lack of evidence. As we have already discussed as to how the witnesses goes hostile, how they are not interested in giving the evidence against the accused, how the investigating agency favours the accused and also how even the prosecution favours the accused. All this leads to a situation where the judge knows that the accused is guilty and wants to convict him but cannot do so because the material on record is not sufficient enough to hold the accused guilty and hence leading to a situation where the accused goes punished and is acquitted.
# The third impediment is that of the Favourable laws. We are well aware that in India, the criminal law favours the accused. The biggest proof of this favour lies in the main concept of proof in the criminal law, which states that “a crime against a criminal must be proved against all reasonable doubts”. This means that the prosecution has to prove that the accused is involved in commission of WCC beyond all reasonable doubts which is a bit difficult the above impediments in the various stages of a prosecution. Hence, the result would be that the accused of a WCC goes unpunished.
# The fourth impediment relates to the Delay in the whole process. This whole process of investigation and trial is elaborately done that it takes years to reach the conviction stage. As we know that the victim in case of WCC is society as a whole, due to the time taken, the society becomes less and less interested in the outcome of the prosecution. Since, they are not interested in the prosecution, there is as such no pressure on the system to convict the accused and the result is that either the accused is released or there is a relaxation in the punishment awarded to him.
This is all about the common and the specific impediments that are faced while prosecuting the accused of a WCC.
Suggestions For Avoiding Or Reducing Such Hurdles:
Following are the suggestions the researcher would like to give with respect to how these impediments or problems in prosecutions be avoided or at least tried to be reduced:
1. Curbing the root cause being the influential nature of the accused:
The root cause of all or rather majority of the impediments is the power or the influential nature of the accused of the WCC. Due to his influential nature or his power, he tries to effect the prosecution at each and every stage be it the pre investigation, the investigation, trial or the conviction stage. He basically tries to create a kind of fear in the minds of the various people involved at various stages, not to do or say anything that goes or that can go against him. Hence, misleading the whole process.
My suggestion to this problem or impediment is that a system must be created whereby the accused is not able to influence the people. There is a need of more and more laws like THE WHISTLE BLOWERS ACT, whereby the identity of the complainant is secured so that the accused is not able to influence or threaten him.
My second suggestion is that a system of incentive must be created so that the people are motivated to come forward against these white collar criminals. The various people like the complainants, the witnesses, the investigating agency, the prosecution lawyer, the judges be incentive in case they help in taking the case to conviction stage. The incentive can be in the form of money or any other kind of gesture of his excellence so that are motivated to do their job in the best way they can.
3. Restrictions on the accused:
As we have discussed that once a complaint has been filed against the accused, he tries to adversely influence the whole process in a way that is favourable to him. A system should be developed through which he is prevented to do so. It can be done by some extra restrictions to his body, phone tapping etc.
4. Security to the people:
This suggestion again relates to the influential nature of the accused. There are a number of people involved in a case be it the complainants, the witnesses, the investigating agencies, the prosecution lawyer, the judge who have a fear in their mind that they would be adversely affected or that they or their family would be harmed in case they say or do anything against the accused.
A system should be created in which an extra security be provided to these people so that they do not have the fear of any adverse happening to them or their family and can proceed towards the case with full vigor.
5. Speedy trial and timelines:
This suggestion is with respect to delay that occurs in the whole process. It take years from when the complaint is filed to when the investigation is completed to when the trial begins and to when it finally end. The time taken is so much that by the time the judgement is to be passed, the whole matter losses it rigor and the people are not at all concerned as to what has finally happened to the accused.
For this problem, I have basically 2 suggestions, first one being the concept of speedy trial and the other being the introduction of timelines. That the legislature should introduce timelines with respect to various stages during or before completion of which the process be completed.
6. Role of legislature:
Legislature plays a very important role to play while enacting laws of this kind. These are the kind of laws that would criminalize or would adversely affect the people they form a part of. Therefore, they adopt a bit relaxed approach while enacting laws relating to the WCC. This is not what is expected from them, they are expected to act more responsibly while dealing with such matters. They should not enact laws that favors the special class of people who are to be designated as criminals by the law rather they should enact the law that favors the people, the society for whose welfare they are expected o work.
7. Stricter laws favorable laws:
As we have seen that the laws relating to the white collar crimes are not strict and also a bit favorable to the accused. There should be stricter laws for them.
Also, laws should be there with respect to the root cause of all the problems that is “their power to influence the whole process”. With respect to this special aspect, the law should stricter the accused should think twice before doing any act that would adversely affect the trial or would make the trial in his favor.
In fact, laws should be there for detection of whether the accused is trying to influence the process. Special care be taken that he is not in a position to influence the whole process. If this thing is cured or avoided, a lot of other defects would automatically be cure or avoided. In other words, this is the most important impediment or problem that should be taken care of by the authorities at the earliest.
This is all about the suggestions the researcher would like to give so to reduce or avoid the various impediments in the process.
This is all about the psychological hurdles that are faced while prosecuting these white collar criminals. The nature of these offences is very peculiar, therefore, they cannot be dealt with the general law and there is need of special attention towards these WCC. To conclude, it can be said that there is a need that our legislature and all the concerned authorities that an environment be created so that these hurdles be removed.