DOCSLIB.ORG

Alex Steel Scientia Education Fellow UNSW Law University of New South Wales [email protected]

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Alex Steel Scientia Education Fellow UNSW Law University of New South Wales A.Steel@Unsw.Edu.Au 15 October 2018 James Mason Senior Adviser Corporations Policy Unit Consumer and Corporations Division The Treasury Langton Crescent PARKES ACT 2600 By email Dear James Reforms to strengthen penalties for corporate and financial sector misconduct – Draft Legislation I refer to the draft legislation released on the Treasury website and the invitation for responses. The proposed amendment to s9 and repeal of s1041G(2) in the words of the Explanatory Memorandum seeks to “introduce a new test that applies to all dishonesty offences under the Corporations Act”. No explanation is given in the Explanatory Memorandum that this change places the Corporations Act outside of the considered approach to the meaning of dishonesty in the Criminal Code and other Commonwealth legislation, and that it is a significant step away from a subjective test for dishonesty. The Commonwealth Parliament has recently amended s135.1 of the Criminal Code to increase the maximum penalty to 10 years imprisonment (Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2018). That offence criminalises behaviour otherwise lawful entirely on the basis that the person acted “dishonestly”. The test for dishonesty in that offence is (a) dishonest according to the standards of ordinary people; and (b) known by the defendant to be dishonest according to the standards of ordinary people (s130.3) There should be a consistent meaning applied to terms across Acts of Parliament. The law is brought into disrespect if dishonesty means one thing for the general public and another thing for company officers. As the Parliament has seen fit to amend this offence recently without amendment to the definition of ‘dishonesty’ it is inappropriate to amend the Corporations Act to remove this test. UNSW SYDNEY NSW 2052 AUSTRALIA T +61 (2) 9385 1000 | F +61 (2) 9385 0000 | ABN 57 195 873 179 | CRICOS Provider Code 00098G 2 As the Victorian Supreme Court’s Court of Appeal made clear in SAJ ([2012] VSCA 243) the complicated legislative history of the offences in the Corporations Act - and by implication the fear legislators had of upsetting precedent decisions, led to inconsistent tests in s184. There is thus a good basis for amendment to ensure consistency. However, a change away from the status quo generally, should require far more justification than has been presented to date. For example, the following issues should be taken into account: • Dishonesty is a community-based standard, and one linked to morality in modern law. Community-based standards are less certain than prohibited forms of conduct. The form of community standard most well known in law is that of negligence. The standard of negligence is context sensitive. Thus the standard of behaviour expected of a sole director, family-based corporation is likely to be less than that of the executive director of a multinational corporation. There is no case-law to date that suggests dishonesty is similarly context specific. Indeed the moral basis to the concept might suggest it could not be. Because of this inflexibility, the Criminal Code test for dishonesty provides a method to account for the differing expectations of accused by requiring that they be aware of the relevant community standard. That may well be an awkward way to achieve appropriate flexibility, but any move away from that should explore the implications. • Serious criminal offences should involve the accused being subjectively aware of their wrongdoing, unless there is an articulated reason for this not to be the case. Again, it might be the case that directors should be liable for negligently failing to appreciate the standards of behaviour expected of them, but if so negligence is the appropriate standard. Creating negligence by default through an objective dishonesty standard confuses the communicative function of the law. • If it is considered that requiring proof that the accused is aware of the standard of behaviour expected of them is too difficult to prove, this should be stated and evidence given of prosecutions that have failed as a result of the requirement. Reform should be evidence-based. • If a form of subjective dishonesty is in fact too vague and uncertain an element to base liability on, legislators should search for an alternative fault element rather than forcing dishonesty into a legal term of art that departs from common community understandings. It is highly unlikely that the community would accept that a person can be unknowingly dishonest. • It may be that directors of companies and those providing financial advice have a moral or fiduciary duty to others that is greater than the general public. If so, that should be identified as a specific duty, and that duty more clearly articulated beyond a vague notion of acting ‘honestly’. If there is no such attenuated duty, the standard of honesty that they should be judged against should not differ from that of the general criminal law as set out in the Criminal Code. As you would be aware, the recent decision of the Supreme Court of the United Kingdom in Ivey ([2018] AC 391) has thrown the test for dishonesty into some confusion. For your information, I attach a draft of a chapter forthcoming in the UNSW SYDNEY NSW 2052 AUSTRALIA T +61 (2) 9385 1000 | F +61 (2) 9385 0000 | ABN 57 195 873 179 | CRICOS Provider Code 00098G 3 Supreme Court Yearbook that outlines the current meaning of dishonesty across the common law world. The range of meanings only underlines the importance of a well- articulated reason to change tests in the Corporations Act. The conclusion to my chapter reiterates the concerns I have expressed in this submission. Yours sincerely, Professor Alex Steel Scientia Education Fellow UNSW Law University of New South Wales [email protected] UNSW SYDNEY NSW 2052 AUSTRALIA T +61 (2) 9385 1000 | F +61 (2) 9385 0000 | ABN 57 195 873 179 | CRICOS Provider Code 00098G Draft paper subject to revision. Alex Steel [email protected] Dishonesty outside of England and Wales: Ivey in international comparison The enactment of the Theft Act 1968, and its adoption of the adverb ‘dishonestly’ have had ongoing repercussions throughout the common law world. Variants of the English concept of theft have now been adopted in most of these jurisdictions. Even in those jurisdictions where there has not been a reform of theft laws that led to the introduction of dishonesty as a statutory concept, Parliaments have adopted the term as a convenient way of expressing fault in an increasing array of acquisitive and relational crimes. The one significant exception is Canada, but even there the approach taken to fraudulence, dishonesty’s predecessor, is an instructive contrast. This chapter considers the way dishonesty has been interpreted and defined in three countries: Canada, New Zealand and Australia – which has nine statutory criminal jurisdictions,1 and an overlaying national common law. 2 In all of these jurisdictions the English decisions of Feely3 and Ghosh4 have been central to the discussion. Thus, the decision in Ivey v Genting Casinos (UK) Ltd t/a Crockfords5 to revisit those decisions can be read against a range of alternative international approaches.6 The chapter outlines the range of judicial and legislative approaches to dishonesty since 1968.7 Often Parliamentary intervention has been in reaction to the judicial approaches. Although the judicial and statutory interpretations overlap and at times are ignorant of each other this chapter places them in a rough taxonomy for analytical purposes. That taxonomy is: a) mens rea approaches – i) minimalist approaches that read the term down to synonyms of pre-existing legal concepts; and ii) entirely mental state elements which conform to ideas of ‘subjective’ or ‘mens rea’ elements; b) actus reus approaches - entirely physical elements which conform to ideas of ‘objective’ or ‘actus reus’ elements; and c) hybrid approaches - these include subjective/objective and actus reus/mens rea combinations Before considering those approaches, it is necessary to consider a fundamental preliminary issue, that of determining the role of dishonesty in criminal law. What is the role of dishonesty? The strongest theme that emerges from this chapter is the inability of courts and Parliaments to consistently agree on an approach to dishonesty because of competing understandings of the basis and role of the criminal law. In this sense ‘dishonestly’, rather than being a difficult concept, is instead one that lays bare an unresolved controversy in the philosophy of the law itself. That is the 1 Under the Australian Constitution criminal law generally is a power that residually remains with each State (New South Wales, Queensland, South Australia, Tasmania, Victoria, Western Australia). The Commonwealth Government additionally has power to create criminal laws ancillary to its enumerated powers, and has also devolved criminal law powers to the Northern Territory and the Australian Capital Territory. Other external territories are governed using Western Australian or Australian Capital Territory Law. Norfolk Island was formerly self governing and had adopted the ACT offences. 2 Lipohar v The Queen (1999) 200 CLR 485 at 505 3 [1973] QB 530 4 [1982] EWCA Crim 2; [1982] QB 1053 5 [2017] UKSC 67 6 Supplementing and critiquing those approaches are a wide array of academic articles. It is beyond the scope of this chapter to do all that academic work justice, but a number are referred to where relevant. 7 For the history of dishonesty prior to 1968 see Alex Steel, ‘The Meanings of Dishonesty in Theft’(2009)’ 38 Common Law World Review 103. 1 Draft paper subject to revision. Alex Steel [email protected] question of whether there are any pre-legal moral or ethical bases to criminalisation8 and the related question of whether dishonesty should be a basis of distinguishing criminal from non-criminal behaviour.9 Surprisingly there is little judicial recognition of these underlying issues post 1968, and it was not explored in Ivey.
Load more

Recommended publications
  • Descriptive Analysis of Georgia High School Teachers' Perceptions of Academic Dishonesty
    Georgia Southern University Digital Commons@Georgia Southern Electronic Theses and Dissertations Graduate Studies, Jack N. Averitt College of Spring 2007 Descriptive Analysis of Georgia High School Teachers' Perceptions of Academic Dishonesty Amy Manning Rowland Follow this and additional works at: https://digitalcommons.georgiasouthern.edu/etd Recommended Citation Rowland, Amy Manning, "Descriptive Analysis of Georgia High School Teachers' Perceptions of Academic Dishonesty" (2007). Electronic Theses and Dissertations. 215. https://digitalcommons.georgiasouthern.edu/etd/215 This dissertation (open access) is brought to you for free and open access by the Graduate Studies, Jack N. Averitt College of at Digital Commons@Georgia Southern. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of Digital Commons@Georgia Southern. For more information, please contact [email protected]. A DESCRIPTIVE ANALYSIS OF GEORGIA HIGH SCHOOL TEACHERS’ PERCEPTIONS OF ACADEMIC DISHONESTY by AMY MANNING ROWLAND (Under the Direction of Walter Polka) ABSTRACT This research study was conducted with the assistance of Georgia high school teachers for the purpose of examining teachers’ perceptions of academic dishonesty during the 2006-2007 school year. Data were gathered to establish teachers’ perceptions of academic dishonesty by exploring what behaviors teachers felt to be academically dishonest, how teachers addressed such occurrences, whether teachers felt any internal conflict regarding academic dishonesty, whether any external pressures were involved in instances of academic dishonesty, and how these experiences affected teachers’ attitudes toward their profession. Results of the study indicated that high school teachers in Georgia consider academic dishonesty to be a prevalent problem. Teachers consider some types of academic dishonesty to be more serious than other types of academic dishonesty.
    [Show full text]
  • Advance Sheets 305 Nebraska Reports STATE V
    Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 09/29/2021 03:25 PM CDT - 415 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. STABLER Cite as 305 Neb. 415 State of Nebraska, appellee, v. Eddy D. Stabler, appellant. ___ N.W.2d ___ Filed March 27, 2020. No. S-19-360. 1. Jury Instructions. Whether the jury instructions given by a trial court are correct is a question of law. 2. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the conclusion reached by the lower court. 3. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favor- ably to the State, is sufficient to support the conviction. 4. Sentences: Appeal and Error. An appellate court will not disturb a sen- tence imposed within the statutory limits absent an abuse of discretion by the trial court. 5. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court’s refusal to give a requested instruction, an appel- lant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court’s refusal to give the tendered instruction.
    [Show full text]
  • Criminal Law: Conspiracy to Defraud
    CRIMINAL LAW: CONSPIRACY TO DEFRAUD LAW COMMISSION LAW COM No 228 The Law Commission (LAW COM. No. 228) CRIMINAL LAW: CONSPIRACY TO DEFRAUD Item 5 of the Fourth Programme of Law Reform: Criminal Law Laid before Parliament bj the Lord High Chancellor pursuant to sc :tion 3(2) of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 6 December 1994 LONDON: 11 HMSO E10.85 net The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London, WClN 2BQ. 11 LAW COMMISSION CRIMINAL LAW: CONSPIRACY TO DEFRAUD CONTENTS Paragraph Page PART I: INTRODUCTION 1.1 1 A. Background to the report 1. Our work on conspiracy generally 1.2 1 2. Restrictions on charging conspiracy to defraud following the Criminal Law Act 1977 1.8 3 3. The Roskill Report 1.10 4 4. The statutory reversal of Ayres 1.11 4 5. Law Commission Working Paper No 104 1.12 5 6. Developments in the law after publication of Working Paper No 104 1.13 6 7. Our subsequent work on the project 1.14 6 B. A general review of dishonesty offences 1.16 7 C. Summary of our conclusions 1.20 9 D.
    [Show full text]
  • Pattern Criminal Federal Jury Instructions for the Seventh Circuit
    Pattern Criminal Federal Jury Instructions for the Seventh Circuit The Committee on Federal Criminal Jury Instructions for the Seventh Circuit drafted these proposed pattern jury instructions. The Seventh Circuit Judicial Council, on November 30, 1998, approved these instructions in principle and authorized their publication for use in the Seventh Circuit. The Judicial Council wishes to express its gratitude to the judges and lawyers who have worked so long and hard to make a contribution to our system of criminal justice. TABLE OF CONTENTS INTRODUCTORY INSTRUCTIONS ............................................1 1.01 THE FUNCTIONS OF THE COURT AND THE JURY ........................2 1.02 THE EVIDENCE ..................................................3 1.03 TESTIMONY OF WITNESSES (DECIDING WHAT TO BELIEVE) ......4 1.04 WEIGHING THE EVIDENCE-INFERENCES .........................5 1.05 DEFINITION OF “DIRECT” AND “CIRCUMSTANTIAL” EVIDENCE ...6 1.06 WHAT IS NOT EVIDENCE .........................................7 1.07 ATTORNEY INTERVIEWING WITNESS ............................8 1.08 PARTY OTHER THAN AN INDIVIDUAL ............................9 1.09 NUMBER OF WITNESSES ........................................10 1.10 REMINDER OF VOIR DIRE OBLIGATIONS ........................11 2.01 THE CHARGE - THE INDICTMENT .....................................12 2.02 LESSER INCLUDED OFFENSE ....................................13 2.03 PRESUMPTION OF INNOCENCE - BURDEN OF PROOF .............15 2.04 DEFINITION OF REASONABLE DOUBT ...........................16 2.05
    [Show full text]
  • College Students' Understanding of Academic Dishonesty Heidi Johnston Taylor University
    Taylor University Pillars at Taylor University Master of Arts in Higher Education Theses Graduate Theses 2009 College Students' Understanding of Academic Dishonesty Heidi Johnston Taylor University Follow this and additional works at: https://pillars.taylor.edu/mahe Part of the Higher Education Commons Recommended Citation Johnston, Heidi, "College Students' Understanding of Academic Dishonesty" (2009). Master of Arts in Higher Education Theses. 4. https://pillars.taylor.edu/mahe/4 This Thesis is brought to you for free and open access by the Graduate Theses at Pillars at Taylor University. It has been accepted for inclusion in Master of Arts in Higher Education Theses by an authorized administrator of Pillars at Taylor University. For more information, please contact [email protected]. i COLLEGE STUDENTS’ UNDERSTANDING OF ACADEMIC DISHONESTY _______________________ A thesis Presented to The School of Graduate Studies Department of Higher Education and Student Development Taylor University Upland, Indiana ______________________ In Partial Fulfillment of the Requirements for the Degree Master of Arts in Higher Education and Student Development _______________________ by Heidi Johnston May 2009 © Heidi Johnston 2009 ii Higher Education and Student Development Taylor University Upland, Indiana CERTIFICATE OF APPROVAL _________________________ MASTERS THESIS _________________________ This is to certify that the Thesis of Heidi Johnston entitled College Students’ Understanding of Academic Dishonesty has been approved by the Examining Committee for the thesis requirement for the Master of Arts degree in Higher Education and Student Development May 2009 __________________________ _____________________________ Tim Herrmann, Ph.D. Date Randall Dodge, Ph.D. Date Thesis Supervisor Member, Thesis Hearing Committee _____________________________ Skip Trudeau, Ed.D. Date Member, Thesis Hearing Committee ______________________________ Tim Herrmann, Ph.D.
    [Show full text]
  • A Timely History of Cheating and Fraud Following Ivey V Genting Casinos (UK)
    The honest cheat: a timely history of cheating and fraud following Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 Cerian Griffiths Lecturer in Criminal Law and Criminal Justice, Lancaster University Law School1 Author email: [email protected] Abstract: The UK Supreme Court took the opportunity in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 to reverse the long-standing, but unpopular, test for dishonesty in R v Ghosh. It reduced the relevance of subjectivity in the test of dishonesty, and brought the civil and the criminal law approaches to dishonesty into line by adopting the test as laid down in Royal Brunei Airlines Sdn Bhd v Tan. This article employs extensive legal historical research to demonstrate that the Supreme Court in Ivey was too quick to dismiss the significance of the historical roots of dishonesty. Through an innovative and comprehensive historical framework of fraud, this article demonstrates that dishonesty has long been a central pillar of the actus reus of deceptive offences. The recognition of such significance permits us to situate the role of dishonesty in contemporary criminal property offences. This historical analysis further demonstrates that the Justices erroneously overlooked centuries of jurisprudence in their haste to unite civil and criminal law tests for dishonesty. 1 I would like to thank Lindsay Farmer, Dave Campbell, and Dave Ellis for giving very helpful feedback on earlier drafts of this article. I would also like to thank Angus MacCulloch, Phil Lawton, and the Lancaster Law School Peer Review College for their guidance in developing this paper.
    [Show full text]
  • Theft Act 1968
    Changes to legislation: There are currently no known outstanding effects for the Theft Act 1968. (See end of Document for details) Theft Act 1968 1968 CHAPTER 60 An Act to revise the law of England and Wales as to theft and similar or associated offences, and in connection therewith to make provision as to criminal proceedings by one party to a marriage against the other, and to make certain amendments extending beyond England and Wales in the Post Office Act 1953 and other enactments; and for other purposes connected therewith. [26th July 1968] Modifications etc. (not altering text) C1 Act amended as to mode of trial by Magistrates' Courts Act 1980 (c. 43, SIF 82), Sch. 1 para. 28 C2 By Criminal Justice Act 1991 (c. 53, SIF 39:1), s. 101(1), Sch. 12 para. 23; S.I. 1991/2208, art. 2(1), Sch.1 it is provided (14.10.1991) that in relation to any time before the commencement of s. 70 of that 1991 Act (which came into force on 1.10.1992 by S.I. 1992/333, art. 2(2), Sch. 2) references in any enactment amended by that 1991 Act, to youth courts shall be construed as references to juvenile courts. Commencement Information I1 Act wholly in force at 1.1.1969, see s. 35(1) Definition of “theft” 1 Basic definition of theft. (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
    [Show full text]
  • Legislating the Criminal Code: Misuse of Trade Secrets
    PART I INTRODUCTION THE BACKGROUND TO THIS CONSULTATION PAPER 1.1 This consultation paper is concerned with the issue of whether there should be criminal liability for the deliberate misuse of the trade secrets of another. As we shall show,1 the misuse of trade secrets cannot found a charge of theft. There has been much criticism of this. For example, a distinguished parliamentarian2 complained that “It is not too much to say that we live in a country where … the theft of the board room table is punished far more severely than the theft of the board room secrets”.3 Professor Glanville Williams wrote: It is absurd and disgraceful that we should still be making do without any legislation specifically designed to discourage this modern form of commercial piracy. Abstracting or divulging an official secret is an offence under the Official Secrets Act 1911, sections 1 and 2; but Leviathan is not much concerned to protect the secret and immensely 4 valuable know-how of its subjects. [RJH1] 1.2 We have also become increasingly conscious that many other jurisdictions, by contrast, extend the protection of the criminal law to the misuse of confidential business information.5 It is noteworthy, in particular, that the majority of the American states and a number of European countries, including France and Germany, provide criminal sanctions against the abuse of trade secrets; and a number of people advocate similar legislation in this country. 1.3 In our working paper on conspiracy to defraud,6 we considered whether to propose any new offence of taking confidential information by dishonest means, or an extension of any existing offence or offences in that area.
    [Show full text]
  • Clarksburg High School – Code of Academic Integrity Other
    Clarksburg High School – Code of Academic Integrity Clarksburg High School highly values academic integrity and does not permit any form of dishonesty or deception that unfairly, improperly or illegally enhances a grade on an individual assignment, assessment or a course grade. The following is a list of behaviors that constitute academic dishonesty. We are aware, however, that new forms of cheating, plagiarism and other forms of dishonesty may arise and, therefore, we expect every student to interpret the requirement of academic honesty and integrity broadly and in good faith. If you have any doubt as to whether a particular act constitutes academic dishonesty, ask a teacher before you do it. Academic dishonesty includes, but is not limited to: Cheating on Exams and Assignments Plagiarism in Papers and Assignments dsg 1. Copying from others or allowing others to copy 1. Giving or getting improper assistance by a from you on any assignment or assessment, parent or other person on an assignment meant including, but not limited to, homework, lab to be individual work. (When in doubt ask) reports, tests, and quizzes. 2. Including in any assignments turned in for 2. Having or using notes, formulas, or other credit any materials not based on your own information in a programmable calculator or research and writing. This includes: other electronic device without explicit teacher a) Using the services of a commercial review and permission. term paper company. 3. Having or using a communication device such b) Using the services of another student. as a cell phone, pager, PDA or electronic c) Copying part or all of another person’s translator to send or obtain unauthorized paper and submitting it as your own information.
    [Show full text]
  • CORRUPTION LAWS a Non-Lawyers’ Guide to Laws and Offences in the UK Relating to Corrupt Behaviour
    CORRUPTION LAWS A non-lawyers’ guide to laws and offences in the UK relating to corrupt behaviour Transparency International (TI) is the world’s leading non- governmental anti-corruption organisation. With more than 100 chapters worldwide, TI has extensive global expertise and understanding of corruption. Transparency International UK (TI-UK) is the UK chapter of TI. We raise awareness about corruption; advocate legal and regulatory reform at national and international levels; design practical tools for institutions, individuals and companies wishing to combat corruption; and act as a leading centre of anti-corruption expertise in the UK. Acknowledgements: we would like to thank those who have supported and advised us in producing this publication, including Jeremy Coleman, Andrew Sheftel and Sam Eastwood of Norton Rose Fulbright, Michael Bowes QC, Brooks Hickman, Transparency International UK’s Jameela Raymond, Michael Petkov, Steve Goodrich, Ben Wheatland and Kevin Bridgewater, and Peters & Peters. Authors: Nick Maxwell and Ben Cowdock Editor: Robert Barrington Design: Philip Jones © 2016 Transparency International UK. All rights reserved. Reproduction in whole or in parts is permitted, providing that full credit is given to Transparency International UK (TI-UK) and provided that any such reproduction, in whole or in parts, is not sold or incorporated in works that are sold. Written permission must be sought from Transparency International UK if any such reproduction would adapt or modify the original content. Published May 2016. ISBN: 978-1-910778-54-8 © Cover photo: iStock.com/MWelsh Every effort has been made to verify the accuracy of the information contained in this report. All information was believed to be correct as of May 2016.
    [Show full text]
  • Fakers and Forgers, Deception and Dishonesty: an Exploration of the Murky World of Art Fraud†
    Fakers and Forgers, Deception and Dishonesty: An Exploration of the Murky World of Art Fraud† Duncan Chappell and Kenneth Polk Abstract This article examines the problem of fraud in the contemporary art market. It addresses two major cases where persons have been convicted of art fraud in recent years in Australia, examining the legal context within which the prosecutions took place. It then examines problems in common terms such as ‘forgery’ and ‘fakery’. The final sections review the different ways that issues of authenticity in art are addressed in possible cases of art fraud, and examines the question of why so little art fraud comes to the attention of the criminal justice system. Introduction Art fraud, especially allegations of the circulation of spurious works of art, seems a common topic for contemporary mass media. Certainly, the present writers, as criminologists, have encountered numerous allegations of false works in the art market in our many interviews and contacts with leading figures in the Australian context over the past decade. At the same time, as we shall see, almost no cases of art fraud work their way through the court system, either in this country or overseas. This suggests that there may be significant barriers within the criminal justice system that make it difficult to prosecute successfully this form of fraud. The purpose of the present discussion is to examine the crime of art fraud in terms of the major elements that have to be established for a prosecution of the crime, based in large part upon two recent Australian prosecutions of this type which have been successful, and then go on to examine some of the reasons why such prosecutions are so rare.
    [Show full text]
  • Background Check 21: Frequently Asked Questions
    Background Check 21: Frequently Asked Questions Q. What is the Background Check 21? Every contract employee, contractor, or subcontractor must have a comprehensive background check before being assigned to Wells Fargo, an FDIC regulated facility. Wells Fargo must comply with Section 19 of the Federal Deposit Insurance Act (FDI Act.) See FDIC Policy. Q. Why has SecurTest with its patented iReviewNow® been selected to perform the Background Check 21? 1) SecurTest provides a fixed flat-rate price, which helps manage your budget. 2) SecurTest was ranked the number one background check provider by HRO Today two consecutive years. Customers, through independent audited surveys, named SecurTest the best provider based on customer satisfaction, delivery of accurate reports, legal compliance, and the ability to deliver to both large and small employers and users of background screening reports. 3) SecurTest is the only background screening provider with the patented iReviewNow. iReviewNow ensures reports are accurate and fair by treating the subject of the background check as part of the process. Q. Can I add additional background check criteria, such as employment verifications, credit checks, education verification, drug testing, I-9, and other features for an additional fee? YES. Call 800-445-8001, as we can develop background- screening solutions that incorporates the Background Check 21 mandates along with your other screening needs. © 2019 – SecurTest, Inc. and iReviewNow, LLC – All Rights Reserved. Refer to your legal counsel to ensure compliance with applicable federal and state 1 laws, as well as the FDI Act, Fair Credit Reporting Act, and EEOC regulations. Q. What convictions are included in the Wells Fargo Background Check 21 Program? Wells Fargo created the Background Check 21 Program.
    [Show full text]