It seems that we have a resolution on criminal breaking of FOI law as it applies to the University of East Anglia. Lucia has an excellent thread on the subject here, which I recommend. In it she again brought up the question of whether it was correct to say that the statute of limitations had truly run out or whether the British IOC was simply using it as a matter of convenience as they are implicated to some degree themselves by the climategate emails.
After some searching I found the laws in question and left this post at Lucia’s and copied it here.
I found the law:
http://www.swarb.co.uk/acts/19…..tAct.shtml127:-
(1) … a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose
The OR is key, it specifically can be read by removing the first option before the or as:
court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the matter of complaint arose
Windandsea then mentioned that the 127 law was not linked to the section 77 law very easily. P Gosselin found the answer to that:
P Gosselin (Comment#31583) January 31st, 2010 at 2:07 pm
Windansea,
Gundersen writes:
“Section 77 of the Act makes it an offence for any person to deliberately destroy, alter or conceal a record after it has been requested with the intention of preventing its disclosure. ”and
“The offence is triable only in the magistrate’s court. However, under section 127(1) of the Magistrates Court Act 1980, proceedings for all such offences must be brought within 6 months of the offence occurring.”
Clearly she is citing 127, and not 77 as you claim.
Seems to me 77 makes it an offence, and 127 says when and who can prosecute.
Well that’s a good find so now we’ve tied the laws together, but how are they practiced? A UK lawyer, possibly from a note left by Windandsea at Bishop Hills blog wrote in to answer. I have to mention that one of the best things about a technical blog is when you can write a post and get quality people to answer difficult questions like this. Who is going to actually look up a UK lawyer in the yellow pages and pay them to answer such a simple matter?
Anyway a Lawyer self named Anguspangus writes this in response to Raven:
Raven:OK, you asked for it! The more technical explanation is this. Section 127 says the court shall not “try an Information or hear a complaint” unless proceedings are started within 6 months from when the offence was committed or the matter of complaint arose. Note the use of the word “complaint” throughout s.127. Now, in the Magistartes’ Court, an Information is not information and a Complaint is not a complaint. What I mean by this is that they are technical terms with specific, legal meanings. A Magistrates’ Court deals mainly with criminal cases, but also has some civil jurisdiction. Criminal cases are started by laying an Information. Civil cases by issuing a Complaint. So in s.127, the words “or the matter of complaint arose”, in effect mean exactly the same as the date of the offence, except it is referring to civil cases rather than criminal. Because it’s talking about civil cases, referring to the date of offence would not be apt, hence “or the matter of complaint arose.”
So the point is that “Complaint” has specific meaning with respect to a civil case and “Information” has specific meaning in the context of a criminal case. Once again, legal definitions of words are different from the understood meaning. I’ve got lot’s of experience with US lawyers, this is common in law in the US so no surprise for the UK. What it means is that any possibility for FOI prosecution of any kind is dead! Now that this is understood, there is simply no reason for anyone to comply with FOI in the UK and I wonder now why the UEA would have an FOI liason anyway..
So, since we’ve cleared that up, is it possible to charge anyone with a crime here?
Angus has that answer for us too:
AngusPangus (Comment#31598) January 31st, 2010 at 4:51 pm
Hi guys,I’m a UK environmental lawyer; 9 years as a prosecutor and longer on the other side of the fence. I’m familiar with FOI and the Environmental Information Regulations.
Some statutes make explicit provision for time limits to be measured from the discovery of facts by the regulators. There is no such provision in this case. The “matter of comlpaint” under s.77 of FOI would be, for example, the act of erasing, destroying or concealing records with the intention of preventing disclosure. In the circumstances being discussed, this is more than 6 months ago, and therefore no prosecution under s.77 is possible. Period.
As has been pointed out, however, if the facts supported it, a prosecution for conspiring with others to breach s.77 would be possible, since there is no time limit for conspiracies.
And I agree, six months is an impossibly short time period for offences like this to be discovered and prosecuted. There is a clear case for these offences to be upgraded to “either way” offences, to which no time limit would apply.
I’ve got no idea why the actions between CRU and IOC wouldn’t rise to the level of conspiracy to block FOI, as the IOC basically admitted there was a crime committed and the emails point out the collusion between UEA FOI officers and Jones et team to block FOI, but again I don’t know what constitutes a British government defined conspiracy, beyond a quick reading of some of the laws.
What I do know is that since IOC got entangled in the whole thing, by advising Jones that he didn’t need to reply to anything regarding the IPCC, it’s unlikely that they would want to dig too deeply into the matter. Their interpretation seems to be correct from my untrained reading of FOI law, there is a whole section on not needing to comply with respect to international information. The question then boils down to what was defined as IPCC business vs UEA business as Jones simply hid everything behind the IPCC and international agreements – which nobody can produce.
In retrospect, after many hours of pouring through emails, Jones and team are unusually sensitive about revealing computer code and data. It’s crazy that they would go to such extreme lengths to not be inspected. I did very little work with the data that has been released this weekend, but will be getting back to it.
the Air Vent 
In email 1119957715, Tom Wigley to Michael Mann and others said: “Ray Bradley and Malcolm Hughes, your “co-conspirators”—and perhaps Phil Jones, Keith Briffa and Tim Osborn”. Seems pretty clear that in June 2005 there was a conspiracy ongoing. Nothing changed, except that they added conspiracy to flout the FOIA, up to the time of the release of the emails.
I guess now we need a UK lawyer to define conspiracy for us. It sure seems as though Jones colluded with other scientists, the FOI ‘person” the librarian etc etc
http://eastangliaemails.com/emails.php?eid=940&filename=1228330629.txt
Offence: Statutory Conspiracy. Criminal Law Act 1977
Statutory conspiracy is defined by section 1 of the criminal law act 1977
Under section 1(1) if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their
intentions, either –
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
He is guilty of conspiracy to commit the offence or offences in question.
Accordingly, it is an offence to agree to commit any criminal offence even one which is tryable only summarily. However, by section 4 a conspiracy to commit a summary only offence can only be prosecuted by or with the consent of the director of public prosecutions.
http://www.fact-uk.org.uk/site…..tatact.htm
It depends of course on the definition of conspiracy. You have to recall the facts around the FOIA denial.
The request from Holland goes in in early May.
The email record is blank until May 27th
Palmer writes to the team ( I think Jones) around May27th and suggests that he is going to deny the request based on the
grounds that the mails are confidential. ( interestingly Briffa has labelled his mail to Wahl as confidential) Palmer asks
the team to contact Ammann and inquire as to whether Ammann considers the mail to be confidential.
In that same mail Palmer says that he wants to do things by the book because he expects an Appeal.
Question: How can you expect an Appeal when you have not heard back from Ammann?
(Hey JeffId, you know that mail I sent you on Nov 19th about the climategate file? the FBI has contacted me. Do you consider that
mail to be confidential? wink wink nod nod say no more. Just kidding but you get the idea.)
Anyways, Ammann responds on or about the 30th that he doesn’t mark his mails confidential.
1. I wonder if Briffa has explained to Palmer that he has marked mails confidential.
2. marking a mail confidential doesn’t make it so.
3. weird that ammann offers up this ” I don’t mark mails confidential”
On June 3rd or So Palmer deines the FOIA, on the 20th the appeal is denied.
On june 23rd Briffa and Osborn are still discussing with Ammann if the mails are confidential.
If I were prosecuting the CRUteam I’d say they worked together to thwart the FOIA request on false grounds. They Intended to deny the request before investigating the facts and ignored what Ammann said in his mail or interpreted it to their benefit ( Osborn, you dont have to mark mails as confidential for them to be treated as confidential.. just SAY they are confidential )
probably inappropriate to have Osborn and Briffa contact Ammann. Palmer should have been in contact with Ammann’s superiors.
Steve,
That’s interesting. Do you know what exactly was in David Holland’s request? I’ve never resolved whether all these emails were collected by an FOI officer. There are clues in the release that the people who did it aren’t very up to speed on paleoclimate work, IMO they are likely less informed than the more technical guys who hang out at these blogs. I suspect the UEA FOI office collected the files for FOI requests before denying them. Is there any reason to believe that’s not the case?
Jeff, link to details of Hollands FOI requests is in Moshs article at Big Government
http://biggovernment.com/2010/02/01/leake-and-the-london-times-climate-scientists-thwarted-foia/
here they are:
http://climateaudit.org/2008/06/20/fortress-cru/
Conspiracy charges aren’t possible because they’re subject to the same time-limits for proceedings (if any) as the offence which the conspirators agreed to commit.
Conspiracy became a statutory offence (that is, it was taken out of the common law and defined in an Act of Parliament) by the Criminal Law Act 1977 (C.45) (as amended). Section 1(1) of that Act defines the offence of conspiracy:
So, if it could be shown that anyone involved in the CRU requests had formed an agreement to blck them unlawfully then they would have committed the offence of conspiracy – whether or not they actually blocked any requests. It only requires agreement to do something which would be an offence if carried out.
However, Section 4 of the Act specified restrictions on the implementation of proceedins. Specifically, in this case, Section 4(4) provides:
Although the ICO has said that an offence appears to have been committed, that offence can’t be prosecuted because of the 6 month time limit imposed on most summary offences. S.4(4) above states that proceedings for conspiracy are also, therefore, not possible.
Hope that helps. Or not, depending on whether the priority is to sort out the science or string up a scapegoat or two. Which might well let the “science” carry on as normal on under the pretence that “the bad guys have been caught and punished” 🙂
Joe
thanks for comments but we have a UK environmental lawyer commenting at Lucia’s that “if the facts supported it, a prosecution for conspiring with others to breach s.77 would be possible, since there is no time limit for conspiracies”
http://rankexploits.com/musings/2010/foi-maybe-there-will-be-charges-filed/#comments
you also say:
Hope that helps. Or not, depending on whether the priority is to sort out the science or string up a scapegoat or two. Which might well let the “science” carry on as normal on under the pretence that “the bad guys have been caught and punished”
the science can’t be sorted out if the scientists refuse to share the data upon which it rests. FOI requests were made and repeatedly refused. Stringing up a “scapegoat or two” is possibly necessary in order to remind scientists that if they are going to produce studies that result in wholesale changes to lifestyles and energy usage, they better be willing to have their data examined and proved.
perhaps you can repost your comment over there and see if AngusPangus responds
Thanks for that, Windandsea, I hadn’t seen the discussion about this over there yet (busy couple of days and catching up round the blogs this evening).
I’m not convinced that Anguspangus has got his interpretation of the Criminal Law Act quite right – it’s not an Act that would feature particularly strongly in Environmental law. S.4(4) categorically prevents conspiracy charges being instigated after any time limit on the underlying offence has expired. I can’t see his original post for some reason – only the place where you’ve quoted him – but will add a query over there to ask his opinion on that section.
As for the matter of prosecution to make a (valid) point, the UEA investigation will find it very hard to come to a materially different conclusion than the ICO without very strong calls of whitewash. That should make any return to post by Dr Jones impossible, which would serve much the same purpose as a warning.
Although it appears that a “conspiracy” to not comply with a legitimate FOI request seems apparent, maybe “conspiracy” is not necessary to prosecute. If these actions do not address activities subject to conspiracy prosecutions in the UK, then there are unlikely to be conspiracy prosecutions. Isn’t this obvious.
Since the clock is running from the discovery of the alleged illegal acts, it would behoove someone to “complain.”
My feeling is that experts have already explored the legal possibilities, and that we are a couple of steps behind on all this. An old legal hat can gauge the situation quick enough.
I think deals have already been cut in the backrooms and this will end up as Joe points out:
“…make any return to post by Dr Jones impossible, which would serve much the same purpose as a warning.”
Both sides could live with that.
I think the UEA CRU doesn’t want to create a political mess by trying to whitewash. And those who want to “string up scapegoats” are recognising that conspriracy might be dicey to prove.
OT: In an interview with Sir David King today, The Independent asserted that the Climategate “emails were stolen from a backup computer server used by the University of East Anglia.”
http://www.independent.co.uk/environment/climate-change/climate-emails-hacked-by-spies-1885147.html
King attributes the theft to foreign intelligence agencies but offers no proof. No evidence was offered to substantiate the claim about the backup computer server as the source of the email, either.
Are these trial balloons for the beginning of a CYA campaign for the British authorities? Maybe they just can’t bring themselves to believe that an insider pulled it off.
12 – he is less bullish here:
http://www.guardian.co.uk/environment/2010/feb/01/david-king-climate-emails-speculation
Strapline – “Former government adviser backs away from sensational claims over involvement of foreign intelligence or wealthy lobbyists”
Re: OT – There is an open/unthreaded here at tAV somewhere and at CA Steve Mc has a thread for news items.
I heard an interview Saturday with a lawyer with Judicial Watch who stated that noting gets down by FOIA or by appealing for information from government and government supported organizations. Those processes get a foot in the door and allow the agencies to be sued and then be required to provide information through discovery. He was the lawyer who was able to reveal the travel expenses of the lady who is Speaker of the House – which probably will not affect a lady with a safe seat who could easily answer charges of improprieties with a middle finger and without political consequences.
The UK is SO confusing to us Americans: http://utube.smashits.com/video/DGscoaUWW2M/Who-reads-the-papers-Yes-Prime-Minister-BBC-comedy.html
Not exactly on-thread, but… it does fit, somehow.
@ Windansea and Joe:
Joe, you’re quite right that conspiracy isn’t normally a big issue in environmental law! But note that my comment about conspiracy was quite carefully framed – I said “if the facts supported it” etc. Now, the weird thing about s.4 of the Criminal Law Act is that if you reach an agreement with others to commit a summary only offence and succeed in your enterprise, s.4 has the effect that the authorities only have 6 months from the commission of the offence to prosecute. After that, time barred. Whereas, if you agree with others to commit an offence and you never execute the dastardly plan, or if the plan is impossible to execute due to facts unknown to you, then s.4 never bites because the principal offence was never completed (note the words in s.4 “where an offence has been committed in pursuance of any agreement”).
So, if you successfully carry out your conspiracy, 6 month time limit. If you fail or never get round to it, no time limit.
Consider, as a hypothetical example, a conspiracy to destroy records with the intention of preventing disclosure. The cunning master criminal devises a plan to simply delete dodgy emails from his Inbox and Sent Items. He contacts his cohorts and urges them to do the same. Some of them agree. Now, not being the smartest master criminal in the world, our protaganist fails to realise that his plan is impossible, because his emails are stored on a server which is subject to layers of backup protection. He doesn’t have access to these and he cannot, in fact, destroy the incriminating emails. Later, there is a leak, and his shenanigans are belatedly exposed to the glare of publicity. “Aha!” thinks our (Grade F) master criminal (having now learned that his plan was stupid because he couldn’t effectively destroy anything). “I can quite correctly say that whatever my emails might appear to say, no data were in fact destroyed because they were all on the big server and backed up in multiple ways!”
In this purely hypothetical example, if Dr Evil had succeeded in destroying his emails more than 6 months ago, he is in the clear. However, since he failed (the emails were not destroyed), no s.77 offence was committed, but the conspiracy offence is still live.
Now while this is all very interesting, the reality is that there is next to no chance of conspiracy prosecutions actually happening: proceedings have to be instituted by or with the consent of the Director of Public Prosecutions and I just can’t see that being forthcoming.
Sorry if my posting is a bit sporadic, but I’ve got a full time job to fit in; goodness knows how Gavin manages…..
Thanks Angus – that’s why I’m still learning. And falling into the trap of not considering any offences other than those the ICO say may have already occurred 🙂
I sent an e-mail to the Campaign for Freedom of Information. They also think it is not possible to prosecute the FOIA violations.
Here’s the reply I got:
———
Dear Mr Gosselin
Thank you for your email to my colleague Katherine Gundersen.
We are aware that section 127(1) of the Magistrates Court Act requires that “a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.”
The question is: does this mean that a prosecuting authority can initiate a prosecution either within 6 months of the offence occurring or within 6 months of a “complaint” about this matter being made?
Section 127(1) of the Magistrates’ Court Act appears to be referring to two different types of proceedings, proceedings for an offence and proceedings which involve the making of a complaint to the court. I do not think they should be seen as two different ways of referring to the same potential prosecution.
An example of proceedings for a “complaint” can be found in section 82 of the Environmental Protection Act 1990 which states:
“A magistrates’ court may act under this section on a complaint made by any person on the ground that he is aggrieved by the existence of a statutory nuisance.”
This type of proceeding would have to be brought within 6 months from the date when “the matter of the complaint arose”.
The “date on which the matter of the complaint arose” does not seem to refer to the date on which the complaint was made, but to the date of the events which led to the complaint.
This seems clear if you strip out the references to an “offence” in section 127(1) but keep those which refer to a complaint. The section then reads:
“a magistrates’ court shall not… hear a complaint unless …the complaint [was] made, within 6 months from the time when…the matter of complaint arose.”
That is not saying that the court must hear the complaint within 6 months of the complaint being made but within 6 months of the matter complained about occurring. In relation to a complaint about statutory nuisance under the Environmental Protection Act, the court would have to deal with the matter within 6 months of the nuisance occurring.
This suggests that what section 127(1) means is that (a) where proceedings for an offence are brought, they must take place within 6 months of the offence occurring and (b) where proceedings relating to a complaint are brought, they must take place within 6 months of events which are complained about.
Many laws other than the FOI Act have been amended to extend this 6 month limit. None of those amendments would have been necessary if section 127(1) of the Magistrates Court Act already allowed a prosecution to be brought either within 6 months of the offence occurring or within 6 months of it coming to light.
One recent example are the Building Regulations. In July 2007, the Department of Communities and Local Government issued a consultation paper seeking views on whether the 6 month limit should be extended in relation to these regulations. The paper, entitled “Longer time limits for prosecution of breaches of Building Regulations” said:
2.4. Because prosecutions must be brought in a magistrates’ court, they must comply with the rules relating to such courts. Currently, section 127(1) of the Magistrates’ Courts Act 1980 requires that any prosecution in a magistrates’ court must be brought within 6 months of the date the offence was committed. Consequently, local authorities must bring prosecutions under section 35 of the Building Act for breaches of building regulations within 6 months of completion of the offending work. Representations have been received from representatives of local authorities and others that this can operate as an obstacle to effective enforcement, given that there can be latent breaches or those discovered after the expiry of the 6 months’ time limit. Such a regime can be difficult to administer when the pressure of normal building control work can crowd out resources for prosecution.
Later the consultation paper says:
Organisations representing local authorities have made repeated representations in recent years about the effect that the current time limits have on their ability to pursue non-compliance. With the 6 month time limit for starting proceedings at magistrates’ courts running from the date of the offence, i.e. the completion of the offending works, and late emergence of (what may not be obvious) building defects, this can easily eat into the time that local authority prosecutors need to prepare an effective case. As a result, cases of non compliance can escape prosecution.
Following this consultation, the Building Regulations were amended by The Building (Amendment) Regulations 2008. The new regulations allow a prosecution to be brought within 2 years of the offence committed, provided this was within 6 months of the prosecuting authority learning about the offence. Clearly, this change would not have been needed if section 127(1) already had the wider meaning that some have suggested.
Finally, in July 2009 the Campaign for Freedom of Information drafted an amendment, which Lord Dubs attempted to make to the Coroners and Justice Bill. This would have amended the Freedom of Information Act to allow a section 77 prosecution to be brought within 3 years of the offence being committed, provided it was within 6 months of the ICO obtaining evidence of the offence. The Information Commissioners Office supported this amendment.
The government did not accept the amendment because – it claimed – there was no evidence that the 6 month limit was causing systemic problems. It did say that if such evidence arose, it would look for ways to put the matter right, and if necessary amend the FOI Act. If it believed that the 6 month limit only ran from the time when the ICO became aware of the offence, it would have said the amendment was unnecessary for that reason.
That reinforces our own view that section 127(1) does not allow a prosecution to be brought more than 6 months after the offence itself has occurred, and that the FOI Act should be amended so that prosecutions can be brought after that 6 month period is over.
Yours sincerely
Maurice Frankel
Director, Campaign for Freedom of Information
Suite 102, 16 Baldwins Gardens
London EC1N 7RJ, UK
Tel: (020) 7831 7477
Fax: (020) 7831 7461
http://www.cfoi.org.uk
———
he he 🙂
s.82 EPA is a really, really bad example to illustrate the difference between a Complaint and an Information to a lay person! You don’t want to know why. My explanation has the dual advantages of brevity and accuracy…
Just out of curiosity, what offense is it you’re looking for a SOL on? Who committed it, on what date?
AngusPangus #16,
That reads better than a mystery novel! Thanks for sharing. Law is strange.
I am a retired American litigation attorney who is a skeptic of AGW theory. I also have a university master’s degree in history with an emphasis on legal history. I find this discussion quite fascinating. However, I have some questions that perhaps the UK lawyers can answer.
1) I have read the UK statutory definition of conspiracy several times. As I read it, it does not require an overt act to carry out the evil scheme to establish a criminal conspiracy. It seems to me that the clause, “if the agreement is carried out in accordance with their intentions would…,” defines the nature of the intended bad act, but does not actually require the intended bad act to be carried out. For example, the the statute says a criminal conspiracy is achieved even if the intended action “(b) would do so [involve a crime] but for the existence of facts which render the commission of the offence or any of the offences impossible.” So, if the conspirators realize their scheme is impossible and they do not perform an overt act to accomplish it, they are still guilty of criminal conspiracy. Is this a correct reading? Or do UK court decisions require an overt act to further the scheme? If not, then wouldn’t the statute begin to run on the date the agreement was made? In the United States, our supreme court has ruled that federal conspiracy laws need not include a requirement that an overt act be made. Neither does Oregon, my state. California and some other states do require an overt act.
2)Is there a UK “discovery” rule? In other words can a statute of limitations begin to run before anyone finds about the conspiracy? Here, the conspiracy was secret and aimed at acts, erasing emails, that would be accomplished secretly. If the emails had not been disclosed, who would have ever known of the conspiracy or that it had been carried out? The motive for the conspiracy was to keep the conspirators’ prior bad conduct secret. The statute of limitations implies that someone could find about the conspiracy in six months, if diligent. Here, discovery was impossible until the leak. From a different angle, would this fact “estop” the conspirators from raising the statute of limitations defense? How can they be allowed to profit from the fact that they controlled all the information, preventing anyone else from knowing about the conspiracy?
3. Anguspangus (great name!) provides very valuable analysis. Nevertheless, I do not understand his argument about s. 77, “if the facts supported it, a prosecution for conspiring with others to breach s.77 would be possible, since there is no time limit for conspiracies.” S. 77 provides that a conspiracy IS a crime. So, conspiring to violate s. 77 means conspiring to commit a conspiracy. I don’t think this works.
In summary, I think the answer to the statute of limitations problem is to deny the conspirators a s/l defense because they controlled all the information. In this circumstance, the s/l should be deemed to run from the date of discovery, i.e., when the emails were leaked.
I am happy I came across your site. I hope to participate further. As you may have heard, Penn State University has clear Dr. Mann of the most serious charges. I examined the investigation report and have prepared an analysis showing why I believe that the report is a whitewash. I will try to post it tomorrow (Oregon time.)
Richard.