2007年度CPA全国统一考试上海考区报名简章
2007-04-18
更新时间:2005-12-20 14:12:46作者:未知
鉴于自己学识的浅显,对英文原文的理解会出现差错,会有许多偏颇,现附上英文原文,希望读者予以指正。
附英文原文:
Re an Inquiry under the Company Securities (Inside Dealing) Act 1985 [1988] 1 All ER 203 (House of Lords)
Warner, a financial journalist, had published two articles which appeared to be based on first-hand information about confidential decision within a government department. Inspectors, who had been appointed to investigate suspected inside dealing based on the same information, required Warner to reveal his sources so that they could trace the Crown servant responsible for the leaks ; but he refused, claiming that as a journalist it was necessary for him to treat his sources as confidential. The inspectors referred the matter to the court, asking that Warner be dealt with
as if he had been in contempt of court (Financial Services Act 1986 s 178). The House of Lords ruled that Warner was bound too answer the inspectors’ question. [Subsequently he was fined $20,000 for contempt, having persisted in his refusal. The fine was paid by the newspaper for which he worked.]
LORD GRIFFITHS delivered an opinion in favour of the inspectors.
LORD OLIVER OF AYLMERTON: My Lords, I have had the advantage of reading in draft the speech delivered by my noble and learned friend, Lord Griffiths I entirely agree that, for the reasons which he has given s10 of the Contempt of Court Act 1981 is not directly applicable to a reference to the court under s178 of the Financial Services Act 1986.I also agree, however, that, even though not directly applicable, s10 is indicative of a general policy which should, on such a reference, be applied by way of analogy. Thus the essential question rais
ed by this appeal is whether ,it being accepted that unless the information sought can be brought within one or other of the exceptions mentioned in s10 Mr. Warner has a reasonable excuse for declining to disclose it, it is information which is ‘necessary…for the prevention of …crime’.
Like my noble and learned friend, I have found myself unable to accept that the expression ‘prevention of …crime’ in s10 of the Act of 1981 is to be construed in the narrow sense for which Mr. Kentridge has contended. Clearly, in enacting s10, Parliament was enunciating a public policy for the protection of a journalist’s or author’s sources of information. Equally clearly, in providing for exceptional circumstances in which that protection should be overridden, it did so on the footing that those exceptions would have some practical application. The narrow&nbs
p;construction contended for would, as it seems to me, largely deprive the exception of any useful content at all, for it is difficult to imagine circumstances in which a court or tribunal would be concerned to investigate a particular anticipated crime. The words must bear a wider meaning than that and must, I think, at least embrace the detection and prosecution of crimes which are shown to have been committed and where detection and prosecution could sensibly be said to act as a practical deterrent to future criminal conduct of a similar type. I&nbs
p;do not, therefore, for my part doubt that a disclosure required to enable persons shown to have been engaged in a criminal activity to be identified and prosecuted is a disclosure required for ‘the prevention of …crime’. At the same time it has to be borne in mind that the protection against disclosure is not lightly to be cast aside and that the conditions required for its removal have to be positively established to the satisfaction of the court. If there is danger that the exception may be deprived of any useful content by too narrow&
nbsp;an interpretation of the protection itself being attenuated to an unacceptable degree if the need for positive establishment of those requirements is too lightly regarded. What has chiefly concerned me in the instant appeal is whether this onus has been sufficiently discharged by the evidence filed on behalf of the inspectors. In my judgment, however, it has only narrowly been discharged and I am concerned that it should not be thought that the protection afforded by the Act can be overcome merely by a ritualistic assertion on affidavit that particular informati
on is required for the prevention of crime. Obviously the court will pay a proper regard to the views of things, know better than anyone else the stage which their inquiries have reached and what is needful for their successful prosecution. But it cannot, in my judgment, and must not be thought to be sufficient dimply to say that the inquiry upon which the body is engaged is one which has as its object the detection and prevention of crime and that, because a deponent says that certain information is required for the purpose of the inqui
ry, it therefore follows inexorably that the information is necessary for ‘the prevention of…crime’. The court must, in my judgment, be presented at least with sufficient material to enable it to exercise an independent judgment on the extent of the need.
If the evidence filed on behalf of the inspectors is open to the criticism that it could have been more specific about the results so far of the inquiries undertaken, one can, at the same time, see very good reasons why the inspectors, in an inquiry whose avowed purpose is to identify and report on criminal activity, should not wish to reveal in greater detail than is strictly requisite the course which their inquiries are taking. What the evidence does disclose is, first, that their is a ring of people who have dealt on the Stock Excha
nge using price-sensitive information derived from at least one servant of the Crown. Secondly, it is demonstrated that the dealing have been on a considerable scale. Thirdly, it is an irresistible inference that the Crown servant or servants responsible for providing the price-sensitive information has or have been acting in breach of a duty of confidence. Fourthly, the inference is well-night irresistible that unless both the source of the information and the persons engaged in the ring can be identified and stopped the course of criminal conduct involved in such d
ealings is likely to continue. Fifthly, it is beyond dispute that Mr. Warner, without any suggestion of impropriety on his part, is the author of two articles in which unpublished information has been deployed with an accuracy which cannot reasonably be attributed to mere coincidence. That information clearly was, before its publication by Mr. Warner, price-sensitive information and it can, initially, only have come from a Crown servant. Now obviously the precise purpose which will be served by the disclosure of the source of Mr. Warner’s information is not capable
of being predicated with complete accuracy until the disclosure takes place, but I cannot for my part think that the evidence can properly be criticized as insufficient simply on that score. It may be that it will lead, whether by way of original inquiry or by way of confirmation, directly to the identification of a member of the ring or of the Crown servants involved. It may be that it will lead to the identification of someone not at present even suspected as a member of the dealing ring or to the revelation of a second and at&nbs
p;present unidentified ring of dealers. It may be entirely inconclusive or serve only for the purpose of elimination. None of these results appears to me, on analysis, to disqualify it as information ‘necessary…for the prevention of …crime’, for, if the exception in s10 is to have any sensible operation, it cannot, in my judgment, be an essential characteristic of such information that the result to which it will lead should be capable of being predicated with precision before it is even known what the information is. For these reasons and for the reaso
ns contained in the speech of my noble and learned friend, Lord Griffiths, I agree that the appeal should be dismissed.
LORDS KEITH OF KINKEL, ROSKILL and GOFF OF CHIEVELEY concurred.