引言

2008年3月19日,倫敦市場一名經驗豐富的職員的被指控傳播對于蘇格蘭哈利法克斯銀行(HBOS流動)股票的虛假和誤導性信息，允許交易員通過賣空這些股票而獲利——這種做法稱為“貶低兌現”。據稱,關于金融市場謠言和郵件流傳,HBOS正苦苦掙扎于日常業務的時候還被被英格蘭銀行喊去參加了緊急會議。進一步傳聞指出,英國《金融時報》寫的一篇公開銀行的債務的文章,將提高銀行擠兌的幽靈。當天下午1點HBOS股價的下跌了19%左右，導致英國央行(Bank of England)發行前所未有的否認HBOS面臨流動性問題和英國金融服務管理局(FSA)發布警告金融行業,它不會容忍虛假交易。

 

Introduction And Overview介紹和概述

On 19 March 2008, the London market experienced allegations of abusive conduct by persons disseminating false and misleading information about the liquidity of Halifax Bank of Scotland (HBOS) shares, allowing traders to profit from the short selling in those shares - a practice known as “trashing and cashing. [2] ” Allegedly, emails circulating around the financial markets contained rumours that HBOS was struggling to fund its day-to-day business and that an emergency meeting had been called with the Bank of England. A further rumour stated that the Financial Times was writing an exposé of the bank’s liabilities that “would raise the spectre of a run on the bank” [3] At 1pm that day the value of HBOS shares had fallen by around 19% [4] resulting in the Bank of England issuing what was described as an unprecedented denial that HBOS was facing liquidity problems and the UK’s Financial Services Authority (FSA) publishing a warning to the financial industry that it would not tolerate abusive trading and that it had commenced an investigation into potential market abuse and unusual trading patterns, and that if it found any evidence of “trashing and cashing” it would start a probe more deeply, tracking the e-mails, and listening to taped phone calls [5] . The Financial Times reported that on the face of it the negative rumours on 19 March 2008 looked like blatant market abuse, but that despite the FSA’s swift reaction, punishment by press release would not satisfy the regulators critics and that there was an increasing demand for the FSA to ‘flay criminals with the rules.’ [6] The wealth of media coverage and adverse comment about the extreme market conditions of that day, together with the alleged abuse occurring at a time of unprecedented economic conditions served to place the FSA - which has statutory duties to maintain market confidence and reduce financial crime and has as one of its strategic aims to promote efficient, orderly and fair markets [7] - under pressure to get results against abusers of the financial markets [8] . Such pressure acted to highlight that although it might be easy to identify market abuse there is very real difficulty in proving it [9] and that much of the FSA’s market abuse activities although useful for catching the casual insider or abuser do not help in catching organised rings of abusers.
 

The Financial Services and Markets Act 2000 as amended (which throughout this thesis is described as either the Act or the 2000 Act unless the context otherwise requires) establishes a civil law enforcement regime prohibiting seven distinct market abuse behaviours and allowing for the imposition of financial penalties by the FSA in the event of a person committing Market Abuse. The regime is supported by a civil law enforcement framework allowing for the speedy resolution of enforcement cases, together with a judicial safeguard allowing disputed cases to be referred to the Upper Tribunal (Tax and Chancery) [11] . Since the implementation of the 2000 Act and notwithstanding the market abuse regime there arguably remains a continued threat to the cleanliness of the financial markets [12] . In response the FSA has gradually extended its approach to market abuse enforcement beyond the civil market abuse regime relying on other parts of its rule book as well as an increasing reliance on the use of criminal prosecutions [13] . Criminal prosecutions certainly generate more publicity and the threat of a custodial sentence provides a more credible deterrent than the threat of a financial penalty. Emphasising the appropriateness of criminal prosecutions in cases of Market Abuse Lord Judge CJ in R v McQuoid CA [14] said “prosecution in open and public court will often and perhaps much more so now than in the past, be appropriate.”