There is no offence if a penalty does not exist in law. That someone is not shackled and carted off to do penance at a penitentiary or for formation at a correctional facility for infidelity suggests that it is not an offence. Treason and insider trading on the other hand are crimes that are met with severe sanctions and punishment. Martha Stewart has been such a part of well-appointed residences for decades that it appeared rather out of character for her to do something improper that would cause her to be arrested. She was convicted and confined to the Alderson Federal Prison Camp. The offense levelled against Martha was one of insider trading.
Insider trading is an offence punishable in law in most developed societies. In some Small Island Developing States (SIDS), no penalty may exist if material non-public information is traded by corporate insiders, violating their fiduciary duty to the detriment of the corporation’s shareholders and to the corporation itself. Such trade does not establish any liability for the insiders if no offence exists in law, or if what exists is not enforced by an independent body like the Trinidad and Tobago Securities and Exchange Commission. In Trinidad and Tobago the Securities Act of 2012, Part 7, Division 5, Sections 100-1006 along with the Companies Act of 1995 can be used to deal with the offence of insider trading and other market misuse and mischief. Misusing privileged information by executives who are in an exclusive position to access such information for personal financial gain is an offence in Trinidad and Tobago, the EU and the US. They are called corporate insiders. Edwin Sutherland in 1939 labelled this type of non-violent crime as White-collar.
It is not the type of criminality chronicled by Damian Marley in his anthem- ‘Jamrock’:
‘C’mon let’s face it, a ghetto education’s basic
And most ah de youths them waste it
And when dem waste it
That’s when dem take the guns replace it
Then dem don’t stand a chance at all
And that’s why ah nuff little youth have up some fat ‘matic
With the extra magazine inna dem back pocket
And ah bleach a night time inna some black jacket
All who nah lock Glocks, ah dem a lock rocket
They will full you up ah current like ah short circuit
Dem a run ah road back which part the cops block it
And from now till a mornin’ nuh stop clock it
If dem run outta rounds ah bruck back ratchet’.
Nothing about this crystal clear image of life in Waterford, Jamaica is combed cotton French cuff white shirt. In June 2018 it was a clear case of life imitating art when a curfew in Waterford led to the flushing out of ‘Eddie’ Montaque- the ‘Two-gun Kid’.
White collar crimes, like corporate espionage and insider trading, have received different treatments on both sides of the Atlantic. The differences between the US and the EU systems stem from their diverging cultural behaviours towards insiders, enforcement, and regulator expenditures to suppress misconduct. Partners-in-crime often infiltrate certain organizations to systematically gain access to and exploit non-public information through viruses, notes from meetings and company records. To address insider trading in the US, Section 16 of the Securities and Exchange Act of 1934 requires that when an ‘insider’ buys stock and sells it within six months, the profits must go to the company. Company insiders are also required to disclose changes in the ownership of their positions, including all purchases and dispositions of shares.
Raj Rajaratnam, the founder of the hedge fund- ‘Galleon Group’, was at the centre of one of the largest insider trading networks. His informants provided illicit information on tech bellwethers like Intel and Advanced Micro Devices and banking titans like Goldman Sachs. Rajat Gupta, the former chief of McKinsey and Co., who also served as a director for Goldman Sachs and Procter & Gamble, was the highest-profile executive convicted of illegally passing on confidential information to Rajaratnam. In any given fiscal year, NY City issues more than a million traffic tickets. This is about 2,700 tickets per day. In midtown Manhattan, numerous traffic violations go unnoticed, with drivers breaking red lights and blocking the intersection at Rockefeller Centre causing gridlock. It is the same with insider trading with only a tiny fraction of offences being brought into unconcealedness. Many escape. The temptation to profit from access to confidential information is simply too great and far beyond the character of most and the chance too easy to pass up.
Dr. Winston McGarland Bailey, HBM, DLitt., in his painterly and poetic description of savvy white collar criminals, bedecked in bespoke made-to-measure suiting, suggested that he may have to
‘invoke the Doctor and then write him a letter
Big snakes in the country, man, they worse than mapepire
When they making they racket, they does dress up in nice jacket
Some big fat macajuel drain out the oil in the oil well
I don’t know how they found the key but I hear they empty the Treasury. Snake in the balisier. Snake in the balisier. Dr. Bailey and Mr. Marley have clearly captured culprits on both sides of the cultural-divide.’