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Fraud and Fitness to Stand Trial
  • Sep 24, 2018
  • Latest News

Fraud involves a person deliberately deceiving a victim for personal gain of property or money. According to the National Fraud Intelligence Bureau, fraud offences in the UK have been increasing since 2012. There are very few empirical studies in the psychological literature of perpetrators of this type of crime as compared to acts of violence against the person but it is clear that fraud is a product of a combination of individual and situational factors (Kapardis & Krambia-Kapardis, 2016). A person may be experiencing financial stress and may be open to solving this by dishonest means but to commit fraud, there must also be the right opportunity. Fraud may have increased because of the internet, which facilitates the possibility of anonymity, and the reduction in social cues when using electronic communication.  

Kapardis & Krambia-Kapardis (2004) reviewed the existing evidence to conclude that the majority of serious fraud offenders are male, aged 35 to 45 years, married, and are of high educational status, with no previous criminal record. A more recent study (Springer, 2018) looking at a particular type of fraud (Ponzi schemes) found that the majority of perpetrators were white males over the age of 50. In a 2014 article in “World Finance” the list of the so-called top ten most controversial fraudsters consists of men         only1 but this in itself does not tell us much; men are more likely to commit crime in general and obviously, women are not exempt from committing fraud.

Fraud is a broad term that covers a very wide range of offences. The Office of National Statistics states that the most prevalent type is banking and payment card frauds which involve falsely obtaining personal card details in order to carry out fraudulent transactions.  There is no one type of person who represents the typical fraudster; someone who commits one fraudulent benefits claim for a few thousand pounds is very likely to have led a completely different life as compared to a person who defrauds thousands of people for millions of pounds in an investment scam. Although some offenders will be psychopaths (Babiak, 2016), most will not and Kapardis & Krambia-Kapardis (2004) found that two thirds of offenders were conventional, law-abiding people until they decided to exploit an opportunity to commit fraud, acting either out of greed or to deal with a crisis in their personal lives because of a serious financial problem.

Psychological evidence is often called for in fitness to stand trial cases. The accused is considered to be fit if he or she can plead to the indictment, understand the course of proceedings, instruct a lawyer, challenge a juror and understand the evidence. This area of law is currently under review, following a report from the Law Commission in January 2016.2 This report advocates for more explicit consideration of decision-making capacity and argues that there is an undue focus on intellectual ability currently, with a relative neglect of issues relating to severe mood disorders or delusional thinking.

During the course of over 25 years of working as an expert witness, I have assessed many defendants facing charges of fraud. The vast majority of them were men. In two cases, the legal issue was a plea in mitigation and in the others, it was fitness to stand trial.  Despite the conclusion from the Law Commission, in all of my cases, the psychological issues concerned mental health and there was no question of a learning disability.

A psychologist should always consider the possibility that the defendant may not be truthful in any report for the Court but this becomes a particularly acute issue in cases where the defendant is charged with fraud. With other types of crime, dishonesty is not necessarily an integral part of the offence whereas fraud is by definition a crime of dishonesty. Former FBI director, James Comey, commented on the propensity for these perpetrators to lie in order to cover up bad behaviour (Comey, 2018). A multi-method approach is essential (de Ruiter & Kaser-Boyd, 2015) and the psychologist should never rely on an interview alone. Psychometric data complements the interview and a thorough review of documentation pertaining to the alleged offence and to the person’s medical history. Although psychologists cannot claim to have a “litmus test” for lying, there are well established techniques, supported by a          considerable body of peer-reviewed research, for assessing the reliability of the defendant’s self report.  

Psychologists should integrate information across several different measures, including performance based tests, such as the Rorschach. This test is not dependent on self-report. It is an information-processing, problem solving task in which the respondent is presented with ink blots and asked what they look like.  The way in which the respondent organises his or her responses provides a picture of how perceptions, thoughts and feelings are structured and processed.  The Rorschach can assist in establishing functional deficits that stem from mental health issues, particularly psychosis (Gray & Acklin, 2008).

An assessment of fitness to stand trial should include consideration of the demands of the particular trial in question (Zapf & Roesch, 2009), including the complexity of the charges, the probable length of the trial, the range and type of evidence to be presented, the necessity for the defendant to give testimony and potential for emotional distress. In large fraud cases, trials are likely to be lengthy and require attention to detailed financial transactions, with a considerable information processing demand on the participants. The psychologist needs to integrate the results from the assessment with the specific demands that the defendant would face if the case goes to trial in order to reach an opinion about how this individual would cope in that situation and consider whether any special measures might ameliorate any potential deficits and render the person fit.

Lastly, criminal cases more often require oral evidence as compared with civil cases. The fraud cases in which I have served as expert were demanding and complex, with extensive historical background information. A competent expert must be able to give evidence in Court in a clear and convincing manner, presenting a psychological formulation in ordinary language that links the data from the assessment to the legal issue that the Court needs to address. A competent expert will also answer challenging questions honestly and openly, with due regard to the scientific status of the test results and to any areas of uncertainty, so that the Court is assisted in its decision-making.

For further information pease visit:
www.carstairspsych.co.uk

1, see https://www.worldfinance.com/strategy/legal-management/10-of-the-most-controversial-financial-fraudsters
1, see https://www.worldfinance.com/strategy/legal-management/10-of-the-most-controversial-financial-fraudsters
2, For a summary, see https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/01/lc364_unfitness_summary_English.pdf

References
Babiak, Paul (2016).  Psychopathic manipulation at work.  In Carl B. Gacono (Ed.), The clinical and forensic assessment of psychopathy: A practitioner’s guide: Second edition.  New York: Routledge (pp. 353-373).

Comey, James (2018).  A higher loyalty: Truth, lies and leadership.  New York: Macmillan.
De Ruiter, Corine, & Kaser-Boyd, Nancy (2015).  Forensic Psychological Assessment in Practice: Case studies.  New York: Routledge.

Gray, B. Thomas, & Acklin, Marvin W. (2008).  The use of the Rorschach inkblot method in trial competency evaluations.  In Carl B. Gacono & F. Barton Evans (Eds.), The Handbook of Forensic Rorschach Assessment.  New York: Routledge (pp. 141-155).

Kapardis, Andreas & Krambia-Kapardis, Maria (2004). Enhancing fraud prevention and detection by profiling fraud offenders.  Criminal Behaviour and Mental Health, 14, 189-201.  

Kapardis, Andreas & Krambia-Kapardis, Maria (2016).  Applying evidence-based profiling to disaggregated fraud offenders.  In Michel Dion, David Weisstub & Jean-Loup Richet (Eds.), Financial Crimes: Psychological, technological and ethical issues.  Cham, Switzerland: Springer International Publishing (pp. 269-294).

Springer, M. L. (2018).  The financial crisis and white-collar crime: An examination of brokerage-failure and its link to Ponzi schemes.  Dissertation Abstracts International Section A: Humanities and Social Sciences, 79(3-A(E)).

Zapf, Patricia A. & Roesch, Ronald (2009).  Evaluation of competence to stand trial.  Oxford: Oxford University Press.

Dr. Kari Carstairs © Carstairs Psychological Associates Ltd, 7 Mayfield Road, Bromley, Kent BR1 2HB Tel/Fax: 020 8325 1697 Registered in England and Wales No 5657675