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1 SALLY RAMAGE, A(Hons) SALLY RAMAGE, A(Hons), MBA, LLM, MCIJ, ASLA A thesis submitted in partial fulfilment of the requirements of the University of Wolverhampton for the degree of Master of Philosophy This research programme was an independent research programme. July 2007 This work or any part thereof has not previously been presented in any form to the University or to any other body whether for the purposes of assessment, publication or for any other purpose (unless otherwise indicated). Save for any express acknowledgments, references and/or bibliographies cited in the work, I confirm that the intellectual content of the work is the result of my own efforts and of no other person. The right of Sally Ramage to be identified as author of this work is asserted in accordance with ss.77 and 78 of the Copyright, Designs and Patents Act 1988. At this date copyright is owned by the author. Signature……………Sally Ramage ………………………….. Date…………………30.08.07………………………….. © Sally Ramage 31 August 2007 1 A COMPARATIVE ANALYSIS OF CORPORATE FRAUD by Sally Ramage © Sally Ramage 31 August 2007 2 A COMPARATIVE ANALYSIS OF CORPORATE FRAUD by Sally Ramage, BA(Hons), MBA,LLM, MCIJ, ASLS Post-Graduate Student Number 0380654 © i This thesis is submitted for the degree of Master of Philosophy from University of Wolverhampton, School of Legal Studies, United Kingdom. Supervisor- 1 st -Professor Andy Haynes, Director of Financial Law Institute, SLS, University of Wolverhampton, Fraud Advisory Council Board Member, Fellow of the Institute of Advanced Legal Studies, University of London Supervisor- 2 nd - Mr Martin Cartwright, Associate Dean, SLS, University of Wolverhampton Internal Examiner - Professor Gregory, Insolvency Law Expert, SLS, University of Wolverhampton External Examiner - Professor George A. Walker, Deputy Director of International Financial Law Unit, Centre for Commercial Law Studies, Queen Mary College, University of London. Signed: Sally Ramage © ii TABLES OF CONTENTS ABSTRACT ....................................................................................................................................................... 1 CHAPTER 1 - THE CONCEPT OF SERIOUS FRAUD ................................................................................... 3 UK Case Law on ‘Conspiracy to Defraud’ .................................................................................................... 7 UK – Fraud was not classed as an Offence by Statute ................................................................................... 7 UK ‘Conspiracy to Defraud’ Common Law Offence .................................................................................... 9 UK Fraud Bill 2006 –A Critical Analysis.................................................................................................... 12 UK - Fraud Records..................................................................................................................................... 15 France- Fraud Offence in Criminal Code..................................................................................................... 16 Germany- Fraud Offence in Criminal Code................................................................................................. 16 US Fraud Statutes ........................................................................................................................................ 17 Conclusion to Chapter 1............................................................................................................................... 18 CHAPTER 2 - SPECIAL INSTITUTIONS THAT COMBAT CORPORATE FRAUD.................................. 19 UK Serious Fraud Office (SFO)................................................................................................................... 19 UK - SFO and Criminal Justice Act 1987, Section 2 ................................................................................... 21 UK’s SFO Case- Saunders v UK ................................................................................................................ 23 UK- SFO, OFT and UK Enterprise Act 2002 .............................................................................................. 25 UK Financial Services Authority (FSA) ...................................................................................................... 26 UK Office of Fair Trading (OFT) ................................................................................................................ 28 France - Criminal Liability and Corporate Fraud......................................................................................... 30 France-Victims of Criminal Corporate Fraud .............................................................................................. 31 France- Financial Compensation for Fraud Victims .................................................................................... 31 France- Time limits for Criminal Fraud Trials............................................................................................. 31 France- Criminal Defendants ....................................................................................................................... 32 France- Procedure Rules .............................................................................................................................. 32 France- Statute of Limitation ....................................................................................................................... 32 France - Fraud Monitoring Agency (TRACFIN) ......................................................................................... 33 France- Fraud Litigation in the Civil Court.................................................................................................. 34 France- Commercial Code ........................................................................................................................... 34 France-Financial Markets Authority (AMF)................................................................................................ 35 France - Breach of Contract- Civil Fraud..................................................................................................... 36 France - Central Corruption Prevention Agency (SCPC)............................................................................. 36 Germany -Fraud as a crime.......................................................................................................................... 37 © iii Germany - Federal Cartel Office (FCO) ...................................................................................................... 38 Germany- Right to Silence........................................................................................................................... 41 Germany- Fraud offences in the Criminal Code (StGB).............................................................................. 42 Germany- Breach of Contract - Civil Fraud................................................................................................. 42 Germany- Fraud Investigations.................................................................................................................... 42 Germany- Securities Fraud .......................................................................................................................... 43 Germany- Federal Financial Regulatory Authority (BaFin)......................................................................... 44 Germany-Deception –is a civil fraud in Germany........................................................................................ 45 Germany- Fraud Overview .......................................................................................................................... 45 US - Federal Criminal Procedure................................................................................................................. 46 US - Police Arrest Procedure....................................................................................................................... 47 US - Criminal Courts ................................................................................................................................... 47 US - Securities Statutes................................................................................................................................ 47 US - Securities Exchange Commission (SEC)............................................................................................. 48 US- Securities Exchange Commission......................................................................................................... 48 Conclusion to Chapter 2............................................................................................................................... 50 CHAPTER 3 - BRIBERY AND CORRUPTION............................................................................................. 58 Bribery and Corruption Overview................................................................................................................ 58 UK & International - Money Laundering (FATF) ....................................................................................... 58 UK Proceeds of Crime Act 2002.................................................................................................................. 59 UK & International - OECD Convention 1997............................................................................................ 59 UK & International
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