FEATURE ARTICLE


Andrew Obinna OnyearuWednesday, April 23, 2003
advertisement
andrews.solicitors@virgin.net
London, UK


419 - THE VICTIM AS A COLLABORATOR:
ISSUES OF CRIMINAL CULPABILITY IN THE ERADICATION OF ADVANCE FEE FRAUD


n the wake of the heightened and justifiable anxiety about the consequences of financial crime in world economy, the United States and various First World Governments have led the campaign to stamp out crimes dedicated to achieving financial rewards all over the world. The US PATRIOT Act has set the operating parameters for anti-money laundering practices all over the world. The key cross-border crimes have been targeted and these issues are being pursued with the type of clinical and incisive precision that has seen the coalition forces overwhelm a non-existent Saddam Hussein-led Iraqi resistance within 4 weeks.

One of the key financial crimes unconnected with the current Iraqi crisis which has persisted in its damaging and unresolved state is Advanced Fee Fraud. Although it has various strands, clearly the most popular is the one which is publicly known with this type of financial crime and is commonly referred to as the 419 scam or Nigerian scam. Its further connection derives from its named source, Nigeria and its name taken from the section in the Nigerian Criminal Code, legislation that was enacted long before its advent, to provide penal consequences for the criminal act of obtaining by false pretences.

419 as a form of advanced free fraud is based on the extraction from another of monies on account of fees, bribes, revenue or tax obligations or brokerage on the false premise that such monies are required as part of an official payment, usually to facilitate the release from Nigeria of staggering sums of money on the understanding that at its conclusion, the person who provides, upfront, the monies or assistance facilitating the release of these monies will receive an agreed substantial percentage of the principal identified sum.

There are a number of critical components of this crime. First, the approach is almost always unsolicited. Second, when it first hit the financial scene in or about 1988, it took the form of a letter from a commonly named individual claiming to be an official of the Nigerian Government or a Nigerian Parastatal. What the letter would usually offer is to transfer substantial funds, usually in the range of several million dollars, to the bank account of the person to whom the letter is addressed. They would then attempt describing how those monies would have been generated upon premises which appear to be steeped in its incredulility. The sender would convey the impression that the recipient's assistance is required in order to deposit the money, usually in a foreign account and would promise a return, generally in the neighborhood of 10-30% of the total sum that is paid through their account. Once the bait is taken by the recipient of the letter, money is usually required of the recipient in order to meet fabricated and usually convoluted professional fees or requirements within the country as well as to take account of Nigeria's inherent corrupt disposition, to facilitate the transfer.

In some circumstances, the recipients have been asked to travel to Nigeria. Several variations of this further approach exist. A common feature is that the recipients are told that visas to travel to Nigeria may not be a requirement from the Country where they depart only to find, upon their arrival, that they face grave immigration and criminal consequences. The scammers then take the steps to procure the recipients entry into Nigeria in circumstances that further reassures the recipient about the genuineness of the people that he is dealing with. The recipient often meets an elaborate scheme that is set up to deceive including high and sophisticated facades of government offices and officials, such that the "all that glitters is gold" impression is created, without hindrance. All these are designed to persuade the recipient to part with the monies that will enable the final transactions to be completed. On occasions, this will succeed. Monies will change hands and the scammers will vanish, never to be seen again.

The above describes only one of a multitude of varieties of 419 scam. In many cases, the recipients of these letters never, in fact, meet their associates. They are wholly taken in by the elaborate schemes to the extent that they part with monies only to realize, quite belatedly, that they have been conned. It is at this stage, either in dilemma or in exasperation, that they contact the law enforcement agencies. The natural response of the agencies will be to investigate the crime, which is exactly what it represents, with a view to locating the culprits and, where possible, bringing criminal prosecution against the perpetrators of the crime.

The statistics in relation to the consequences of 419 crime across the world make staggering disbelief of the sheer value of its successful execution in relation to the global nature of these crimes. The United States alleges that 419 fraud is costing US citizens over $100 million each year. In the United Kingdom, potential total loss from all areas is estimated by the National Criminal Intelligence Service (NCIS) to be in the region of 150 million per annum. These statistics are frightening. NCIS suggests that approximately 1.4 million letters are sent across the UK annually and that there is an estimated 1% take up rate in the UK alone!

The Nigerian Government has been accused of complacency, not only as to failing to seek and implement effective preventative action, but also in permitting its agencies, either directly or otherwise, to be used. The Government has denied any connection to the fraud and argues, with some justification, that it is a scheme's biggest victim. The Government, in response, confirms that it has allotted, over some considerable period, time and significant resources in fighting this scam. In 1991, the Government created a Presidential Task Force on Practices to check advanced fee fraud. It followed that by the establishment of a Special Fraud Unit within the Nigerian Police to investigate and prosecute cases of criminal deception. In 1995, it enacted the Advanced Fee Fraud and other Fraud Related Offences Decree. It went a step further by the publication of names of Nigerians convicted abroad for various crimes associated with 419 fraud. The Corporate Affairs Commission has a directory of names of persons or businesses implicated in business scams and swindles which it publishes. Further, the Government has over the years, embarked on publicity enlightenment campaigns against advanced fee fraud locally and internationally in both the print and electronic media. The Government states that it has spent over $4 million in placing advertorials in over 80 newspapers and magazines in 12 languages over 36 countries.

Even in spite of these efforts, the Government's bona fides is still in doubt, especially by many outside the country. It is argued that the Government has failed because of what appears to be its tame attitude towards the enforcement of what, on its face, appears to be very apt measures that it has put in place in Nigeria. In other words, although the mechanism has been put in place, its actual effect is allegedly derided by appalling implementation. Whether there is validity in this appraisal remains to be seen, especially if considered against what I would consider to be a wholly incomplete picture of the manner in which the crime is treated in the international community.

In this paper, I propose to deal with the social issues around the sensitivity to the one key components of an average 419 crime. Generally, in most of the literature that I have come across recording the circumstances of this crime, the person who loses the money is described as the victim. This is a particularly key and important assessment for the purposes of law enforcement in the course of the investigation of the crime itself. It is my view that a different appraisal of the practices involved in the crime would lead not only to substantial diminution of the crime itself but the highest form of public sensitivity there can be to decrease the prevalence of the crime.

In describing the anatomy of 419 fraud, I made reference to the fact that it is often initiated by the receipt of an unsolicited letter in the form of a fax or e-mail. There is usually no connection between the writer of the letter and recipient prior to the letter being seen by the latter. In many cases, the letters are ignored. This is and remains the best approach and this is confirmed as being the key form of counsel given by every law enforcement organization that deals with 419 Fraud. In summary, if it is too good to be true, it probably is, so leave it well alone! In some cases where it excites some interest, the recipient then takes the next step by making contact or returning contact to the writer of the letter. It is then that the scheme begins to take shape. It is to be remembered that in every scheme that has been described, there is, clearly for the honest and prudent businessman or investor, a scheme of absolute and unbelievable incredulity. The warning signs are numerous. First, the effort required in order to procure the payment of the monies is minimal. Second, interest in this scheme is only engendered or driven by an overwhelming sense of greed. It is evident that greed is the compelling and irresistible motive that drives the reasoning behind the forlorn desire to acquire or obtain benefits from a scheme in respect of which precious little is offered; no product or service is supplied and huge gains are to be made. This clearly denotes the criminal intent behind the scheme. Therefore, anyone who allows themselves to be persuaded into participating in this scheme cannot, in my view, be described as a victim but as a collaborator.

Collins Dictionary & Thesaurus (1998) defines a victim as "a person who is tricked or swindled". Trick is defined as "a deceitful or cunning action or plan". To be a victim, there are a number of crucial ingredients that must exist. First, the person must be detached and innocent. Second the person would not have actively encouraged or participated in any form in bringing about the set of circumstances which adversely affects him. Third, the person is usually in a position where they are deprived of the element of choice in relation to bringing to an end the circumstances which create the adverse result. If any of those factors is vitiated by a conscious intent to participate in the course of action or scheme, whether initiated by curiosity or greed, such a person cannot be considered a victim. Conversely, a collaborator is a person who knowingly or recklessly participates in a scheme or action. Collins Dictionary defines "collaborate" as "to work with another or others on a joint project". It is clearly evident that the manner in which various individuals participate in 419 frauds is such that the so called "victim" is less of a victim but more of a collaborator. Collaboration is driven specifically by the greed to acquire an interest in funds that, on the face of it, represents the outcome of illegal dealings. In many respects, no attempt is made to disguise the illegal nature of the principal funds offered in the scheme. An intention to partake or share in those funds, followed by efforts made to achieve or accomplish this objective clearly criminalizes the actions of the so-called "victims".

The actions of the both the writer and the recipient give rise to criminal consequences. Various crimes and the inchoate offence of conspiracy are clearly committed by those who participate in the scheme, whether initiated by the deception practiced or by greed such that all parties involved should be prosecuted. The legal and academic issues arising from this analysis will be discussed elsewhere, but the clear deduction from my analysis in this paper is that those who facilitate the creation of the scheme should themselves be punished.

Many would suggest that this is insensitive and would result in double jeopardy, that is, he who has lost money will be punished twice not only by his pecuniary loss but also by the imposition of criminal liability. From a social perspective, prosecuting the collaborator must surely be right. Latent corruption is facilitated by two or more parties namely the person who offers the inducement and at least one person who accepts. The moral issues surrounding little investment for huge returns defy commercial logic. 419 scams carry hallmarks of alarm at virtually every stage such that he who persists with it only does so principally as a consequence of being consumed by greed. Taking the argument at its highest, a successful participant is a criminal.

419 fraud would not occur if illegal funds are actually spirited out of Nigeria in the manner usually described by these schemes. If such large sums, which are clearly illegally generated, are removed from Nigeria, I am sure, this will give rise to the commission of crimes in various jurisdictions in the world which would lead to the prosecution of those who actually facilitated those crimes by paying the money to the scammers in the first place. On any view, crimes have been committed that should involve prosecution of every party directly connected with the successful or unsuccessful implementation of the scheme. The fact that the scheme does not succeed and that the person who parts with money is seen as having lost money should be no bar to the prosecution. In simple terms; it can be equated to investing money to procure tools or access for the commission of crime.

The collaborators in 419 schemes should be criminally prosecuted. This would give rise to two obvious results. First, those who, nevertheless, proceed to commit these crimes will be deterred by the criminal consequences that failure and adverse publicity, in the form of detection by the law enforcement agencies, will attract. This will have a deterring effect because many who, prior to now, would not have been put off in exploring the options would be correspondingly discouraged. The direct result of this outcome is that more scams will fail and the success rate for the scammers will drop significantly. This will make the crime correspondingly unproductive and unattractive. Second, the effect of the lack of success of the scams together with deterring obstacles already in place to punish the scammers will seriously affect its persistence. The fact that 419 fraud has not been eradicated clearly indicates that the scammers are encouraged not distracted by the measure of success they continue to enjoy. The biggest deterrent of 419 fraud is not the penal consequences that could arise from failure but by the pecuniary consequences. Once the success rate reduces, there will be a corresponding reduction in persistence with the crime. In my own view, this is the key approach to the dimunition or extinction of the crime.

In order to achieve this outcome, the single biggest factor in its success will be the development and sustenance of the political will to prosecute. International communities that complain about the consequences of 419 fraud must be prepared to take the bull by the horn. Put bluntly, their nationals are chiefly responsible for this crime succeeding. If there were no takers, the crimes would not succeed. If the nationals are not driven by greed, the failure rate would be significantly higher. If the international communities remain prepared to reward honesty and discourage greed from giving rise to crime, it must be prepared to punish those who are responsible. It is not enough to criticize Nigeria and its Government for its role in failing to stamp out 419 fraud. The mentality is the same - Quick money, Little or no work done or to be done and an overwhelming belief in the success of the transaction. The common denominator is greed, a concept that does not discriminate between Nigerians and Non-Nigerians. Nigeria represents an easy target. One out of every 5 black persons in the world is Nigerian. Little wonder all the financial crimes are alleged to be committed by those associated with Nigeria. No one gives Nigerians the benefit of the doubt - why should they? Our widely publicised and distorted antecedents make matters difficult for us. By the very nature of the crime, it is extremely difficult to control. The sophistication involved draws inspiration from the criminal practices in the international communities. That is why it is extremely difficult to detect. The schemes where aspects are implemented in Nigeria represents a small minority of those responsible for causing the colossal loss that 419 fraud has caused. The integral ingredients of the crime physically occur in the international communities in circumstances that Nigeria has precious little control over. In fact, closer analysis clearly shows that when money changes hands, the vast majority of it occurs outside Nigeria. In short, the vast proportion of the crime itself is committed outside Nigeria. It is for countries that make up the international communities who are adversely affected to seize the initiative and punish those who are responsible for creating this atmosphere. The international Governments appear keen to take preventive measures that do not go all the way. The proffering of advice to those who bring the circumstances to the attention of the authorities and the disbandment of 419 fraud units abroad is not enough. Governments of the countries who believe that they have been adversely affected must take the initiative and make examples to stamp out the kind of greed that gives impetus to this scheme. Until the Governments in the international community are prepared to take radical steps to combat this problem, the scammers will continue to enjoy the kind of success that means problems of 419 and the inglorious statistics that we are confronted with on a regular basis will remain prevalent.

Andrew Obinna Onyearu is Principal, Andrews Solicitors, London & Senior Partner, Chancery Chambers, Abuja