No-one wants to be convicted of committing a crime.
As a basic rule of thumb, I don't think this is a remarkable statement, although there are a group of criminogenic personalities inside the underclass milieu who probably don't give a great deal of thought to the question, and to whom, the receipt of a criminal conviction is little more than a social rite of passage!
No, I am talking about most normal people, to whom the receipt of a criminal conviction carries a real social stigma.
I have been very engaged recently in trying to understand why Government and the regulatory agencies, have been so concerned to ensure that they do not criminalise the actions of City practitioners, even when there are very real transgressions of both the financial market law, and the ordinary criminal statutes!
We are a very strange society in so many ways. We examine all social activity for signs of behaviour which we deem unacceptable, and where such conduct transgresses the moral law which means that other people have been put at risk, we tend to treat it more severely than if the conduct complained of was merely anti-social.
So, where a financier treats a client in such a way that the clients' monies are put at greater possibility of loss or the client is exposed to greater risk of suffering financially because of the conduct of the adviser, we examine that conduct to establish whether he or she has behaved in anything other than in a proper manner, and the loss sustained is due to unforeseen market circumstances, or whether the conduct of the adviser was so egregious that it directly contributed to the losses concerned!
Where the actions of the adviser or intermediary are shown to have directly contributed to the client's loss or damage, society, rightly, takes a much more severe view, and examines the actions of the adviser to establish whether the criminal law has been broken.
Take, as an example, the actions of those in the Quality Care Commission, against whom it is alleged that their actions, by suppressing an important critical report into conditions inside a particular institution, have caused such public distress and loss of confidence in the NHS, that there is now talk of criminal investigations.
I suspect that the reason for this assertion of criminality is more to do with the embarrassment that this episode has caused to politicians as opposed to the damage to the Common Weal, but the end result is that there will now be a criminal investigation of the conduct of the persons involved.
Another example which I believe throws light on our attitudes towards criminality is the treatment of Boat Race protester Trenton Oldfield who has been refused leave to remain in the UK after the Home Office decided his presence was not "conducive to the public good".
The Australian, who disrupted last year's University Boat Race by swimming into the path of the crews, was jailed for six months for his actions when he was found guilty of causing a public nuisance.
The Judge said he had ruined the race for everyone: "You caused delay and disruption to it and to the members of the public who had gone to watch it and to enjoy the spectacle of top athletes competing."
Adding that Oldfield's actions had endangered his life and those of others, the judge said: "Your offence was planned. It was deliberate. It was disproportionate. It was dangerous."
These elements may well be true, but was the offence so egregious as to deserve a custodial sentence? I suspect that Oldfield was treated so severely because he had transgressed the social rules of one of Britain's most important class-focused sporting events, as opposed to anything else. The man was clearly a bounder, and a foreign bounder at that and had to be taught a big lesson, but was his behaviour so much more damaging and dangerous than some financial adviser who cheats his clients of thousands of pounds of their money, or who deliberately manipulates an important market benchmark in order to enhance his profits, at the expense of many others?
I comment regularly on our national benchmark behaviour in criminalising single mothers on benefits who fail to report the fact that they allow a lover to stay the night, actions of such dishonesty which enables the State to convict them of welfare benefit fraud, and I also comment on the paucity of criminal convictions for those who work in the financial services industry, even when they commit offences running into hundreds of thousands of pounds.
I have been wondering why this state of affairs is allowed to continue to exist, and I have been amused beyond measure by the observations of ministers following the recommendations of the Banking Commission.
The talk is all of imposing prison sentences for reckless bankers, but as I have already said elsewhere, when we deconstruct the conditions precedent for any such prosecution to be brought, we discover that the new proposed law is even more complex than the perfectly good existing law on reckless conduct which could have been imposed normally, and will mean that it is even more difficult to convict dishonest bankers.
So why is it that imprisonment for criminal offences is so routinely abjured when it comes to dealing with financial practitioners? What makes the crimes of the suites and the dishonest actions of the powerful so different that they deserve to be treated in a different manner from the crimes committed by the underclass in the streets?
One thing is certain, the City practitioner group believes it deserves to be treated differently, and it has been often said to me, 'we never once thought that we would be treated like common criminals.'
So where does that presumption come from?
The British have always adopted a schizophrenic attitude towards the way they view criminal activity. There is the crime of the streets, burglary, theft, mugging, joy-riding, rioting, committed by identifiable criminal types, and dealt with by the police. Then there is the kind of wrong-doing that takes place within the financial sector, but when it happens, it gets called something else (mis-selling), and is dealt with by regulatory agencies.
For some reason there is a complete distinction between the two courses of conduct. They are, and have always been dealt with differently; penalised differently; administered differently, and for some strange reason which I only finally understood after I had studied the work of Edwin Sutherland, considered differently by politicians, regulators and in many cases, even by the general public.
Edwin Sutherland, who first coined the phrase 'White Collar Crime' separated and defined the differences in blue-collar street crimes, which are often blamed on psychological, associational, and structural factors. Instead, he defined white-collar criminals as opportunists, who learn to take advantage of their circumstances to accumulate financial gain. They are educated, intelligent, affluent, confident individuals whose jobs involve unmonitored access to large sums of money. Precisely because these criminals were held in such high esteem, Sutherland claimed that society tended to turn a blind eye to the crimes they committed.
In order to test this assertion, I once conducted an academic research project where I asked a group of financial services compliance officers to place in order of seriousness a series of criminal offences. In the general list I included six typical identifiable criminal offences such as theft, fraud, joy riding, robbery, while for the other six I used recognisable terms such as ‘insider trading’, ‘churning’, ‘misselling a financial product for the purposes of generating more commission, ‘misselling a financial product which meant that the client was no better off, but which generated more profit for the company’, ‘front running’, etc.
Without exception, in excess of 60 respondents put the identifiable ordinary crimes first in the list, while putting the financial issues last. It was as if activities which could be described in conventional criminal terms assumed a far greater degree of social opprobrium than did financial crimes, even though in pure legal definitions, all the offences alleged were equally criminal and all should be investigated and punished equally seriously.
Financial practitioners do not fear regulatory fines, mostly because they are not individually called upon to pay them. The burden always falls on the shoulders of the shareholders, many of whom, if the Standard Chartered Bank case is anything to go by, will not even blame the Executives of the bank for landing them in this mess in the first place. Regulatory findings will always find fellow practitioners who are willing to sympathise with them. Public scandal can be difficult to handle, but rarely does an executive get forced from office. He may quietly resign at a later stage, but he does so with a well-padded pension fund and other generous benefits to cushion his existence.
This whole issue of the suitability of punishment for serious wrong-doing has been a critical element of the longer-term failures of the former FSA to bring a robust approach to the regulation of the UK financial market. Ultimately, it is prosecution for crime which the financial practitioner truly fears, but if the market knows that the regulator is deliberately avoiding adopting its prosecutorial role, then this will lead to a realisation that the regulator has no real teeth!
It has always been one of the greatest ironies of the whole regulatory conundrum that criminalisation for simple offences of ordinary 'crime' is one of the greatest fears of the Executives of the financial sector.
Ironically, it is not necessarily the sentence which is passed which is of the most importance, the true fear of the financial practitioner is of the verdict of 'guilty' being publicly pronounced in open court. Such a verdict immediately takes away the sense of being a 'protected species' which too many banksters have believed they possessed for too long.
A criminal conviction places them on a par with other ordinary criminals, people who under any other circumstances they would go out of their way to avoid like the plague. The fact of conviction now puts them in the same 'criminal class' category and it spells social and commercial death for any city practitioner who has been so convicted. It is the ultimate exclusionary weapon of social and reputational mass destruction.
So powerful is the impact of criminalisation that even those who had once called the convicted man a friend find it very difficult to continue to see him, even in a private social context. As for any further dealings with him on a commercial context, such a thought would never enter their heads. He is now entirely beyond the pale, and he can never be received again inside the magic circle.
This is the fundamental point, a criminal conviction marks the end of the bankster's career. He is out on his ear, in the street, and no-one can do business with him ever again!
Can you imagine the impact that such an action would have had on the careers of Fred the Shred, or Bob Diamond or any of the other monsters of finance who have presided over the downfall of the British banking reputation, if they had been, at some stage in their career, told that the criminal activities being carried on in their banks would mean that they were going to be prosecuted for permitting such activities to carry on? Do you not think that it might have caused them to make enquiry and put a stop to whatever was going on?
This may be what makes it so difficult for regulators to bring such a powerful weapon to bear on those whom they perceive may come from the same class and socio-economic background as themselves! They won't admit this of course, and they tend instead to use the excuse that financial crime cases are too difficult to get convicted, that juries do not understand them, although that has never been my experience.
One of the reasons for the lack of public confidence that permeates the body politic of this country is because the ordinary man and woman in the street simply does not believe that their interests have any champion, whether in politics, or government, and that they are merely expected to carry on being the pawns in the game played by the rich and powerful.
I have spoken to literally hundreds of such people who protest that they feel completely disenfranchised from any system which exists to protect their interests, whether it be in the form of a fair hearing when they have been cheated of their hard-earned money, or a forum from which they can get equal treatment when they wish to challenge the arbitrary decision-making of the financial institutions.
Civil servants, regulators and government departments seem to exist to protect the interests of politicians and regulated members, not to provide the citizen with any right of redress or fair hearing when they have been defrauded.
One way to start reclaiming the balance of fairness would be for the powers that be to treat financial practitioners with equal rigour when they commit obvious criminal offences. Once the public got the impression that there was only one law for all, and that it was applied with equal fairness, it would go a long way to begin restoring confidence in the way this country is run!