It appears that poorly crafted law is going to mean no prosecutions for any of the CRU collaborators in the now famous leaked emails and documents. This from The Bishop Hill blog:
I’ve just come off the phone to the investigations office at the Information Commissioner’s office. I had made a request for information to UEA that, while only peripherally related to Climategate, has now turned up some interesting new information.
My original request was from a couple of years ago, asking for any correspondence between the CRU’s Mike Hulme and the BBC in relation to a body called the Cambridge Media and Environment Programme (see here for some background on this story). The original response from UEA was that all Prof Hulme’s emails prior to 2005 had been lost, an admission that appears rather embarrassing in the light of CRU’s suggestion that they had lost some of their original temperature data.
However, when the Climategate emails were released I noticed several email from Mike Hulme predating 2005, which appeared to contradict the earlier assertion that all such emails had been lost. Intrigued, I wrote to the Information Commissioner asking that this be investigated and today I had my response.
First off, I was told that while there appeared to be a problem, I needed to be clear that there would be no prosecutions under the terms of the Freedom of Information Act, regardless of the final outcome of the investigation. Although withholding or destroying information is a criminal offence under the terms of the Act, apparently no prosecutions can be brought for offences committed more than six months prior. As anyone who has made a UK FoI request knows, it can take six months to exhaust the internal review process before the ICO even becomes involved. The ICO can then take another six months before starting his investigation.
But there’s and interesting theory being proposed.
It seems quite clear that civil servants are able to withhold and destroy information without any consequences and it’s interesting to ponder how such a dramatic flaw can have found its way into the terms of the Act. Of course we in the UK are used to poorly drafted laws finding their way onto the statute books, but we might also consider the thought that Sir Humphrey might have knowingly inserted this crucial error, in order to ensure that when push came to shove he could keep things quiet without any concerns that he might find himself in hot water.
Conspiracy theory? Perhaps, but you have to admit, it’s a possibility.
I’m sure the collective of CRU is breathing a sigh of relief knowing this, however there may be other unforeseen repercussions coming from the investigation, and UEA may have other rules for professional conduct that may apply.
Stay tuned.
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Re: Tarby (08:15:41) :
What is your point? Your original post implied that the article was saying the loophole only applied to the UEA. I pointed out the article does no such thing. Perhaps you are not aware that “Sir Humphrey” does not refer to a member of the UEA but instead to a character in an old TV series, called “Yes minister”, who was a senior civil servant.
Typo Alert!
Para #6: “But there’s and…” should read “But there’s an …”
I’m not normally a pedant but I know the AGM crowd look for anything to discredit you.
You are really rockin’ over the last few months. Great work and I wish more power to your pen.
Thanks also to Mr Watts for all the hard work that this site must demand.
I intended to mention the moderation team as well but my finger was too fast.
So, thank you, guys, as well.
Further to MartinGAtkins post. It is a criminal offence to destroy documents for which a FOI request has already been made. It is the responsibility of the person(s) to whom the request has been made to safeguard those documents.
If you have any evidence that this was not done and the documents were destroyed after your request you should make a further complaint to the Information Commissioner. Even if the Commissioner’s office is correct in their assertion that no prosecutions can be taken more than six months after the event, you can bring a complaint against the Commissioner at the Information Tribunal for not ensuring that the documents were preserved.
The Tribunal has a good track record of upholding cases brought against the Commissioner when there is a genuine case to answer. (for example see Berend v London Borough of Richmond upon Thames)
There’s no loophole that will permit them to escape prosecution in the court of public opinion. The only way they will escape this is by complacency on the part of those wishing them exposed.
As I read this the possibility struck me that a central website could be constructed with the specific purpose of documenting the technical sins and civil crimes of these folks, and advocating in government and media to have these exposed publicly. The courts may or may not come up with punitive measures, but public vilification and discreditation will do more than some administrative fines.
In any case there is a jurisdictional problem in bringing these folks to heel — their criminal syndicate spans the globe — North America, Europe and Australia at least. So there is no one court of law in which to try them, and it’s easy enough for them to point the finger of blame to others outside the courts’ jurisdiction. But they cannot escape the jurisdiction of the court of public opinion.
Obviously Tarby either doesn’t know what the Sir Humphrey reference is from or is deliberately trying to through a red herring out their. For Tarby the Troll’s edification here are some points you should consider:
Point 1: Know what the reference is to. Sir Humphrey is a fictional British character from a television series.
I would hope that even if these guys escape prosecution under the FOIA, that they may be still found to have a legal case to answer for fraud since effectively it seems that is what they were engaged in and for financial benefit i.e. grants.
Al Capone went to jail not for racketeering, which was difficult to prove, but Income Tax Evasion.
I don’t care much what these guys go down for but If true, what they did ought to be considered criminal and they ought to go down for it.
I would hope that wit the current furore over the IPCC’s abuses and everything else that has been emerging from the persistent enquiries, like the sludge from a blocked drain, the UEA and others may be considering it time not to whitewash but deliver u the sacrificial goats.
boballab: “It doesn’t matter if its Climate or the expanse account for some clod in the census beaureu that puts the afternoon hotel room romp with his mistress on it.”
Hey bob, I appreciated the playful “expanse account” but couldn’t find the double entendre, if there’s supposed to be one, in “census beaureu”, though I can almost see one. I’ll assume it was a typo, and express my sympathy — “bureau” is probably the word at which my mind most often goes blank as I try to spell it. Spelled correctly, it just does not look right on the page, to me.
If you missed Paul Coppin’s post above, please take a look. If his information is correct, the six month limit hasn’t nothing to do with the FOI act per se. There is apparently a six month limit on the statute books pertaining to “summary offenses” in general. It would be like having committed a speeding violation but the prosecution isn’t initiated within six months – the charge must be thrown out of court.
The only unanswered question is whether these offenses can be classed as summary. They would seem to be to be more serious, but who knows? Oh yeah, a lawyer would know. Have we got any reading this blog?
Paul Coppin makes a sensible point. These offences have a limitation of 6 months because they are summary offences. The only way around this is to go for the agencies that dragged their feet to ensure that the 6 month deadline passed. But this would be extremely difficult. The alternative is to pursue these conmen through the courts for obtaining a pecuniary advantage by deception – namely their pay and grants which they received on the basis of publishing manipulated data. This would require a serious fighting fund. But don’t forget, you people of England, you have already surrendered your right to prosecute through the criminal courts. The Crown Prosecution Service (the govt.) can take over your prosecution at any time and withdraw it. Over the past 20 years your freedoms have slipped away into the the hands of the state ranging from the gift of power to the EU to the centralisation of power (what remains of it) at Westminster. I don’t like it but we may have to go down the US road where we elect our judges and police commisioners. There was a time, not so long ago, when these people were persons of integrity who understood their role in our governance. Now, with the prevalence of govt. ‘agencies’ we have unaccountable so called civil servants (servants – ha) lording over us and making sure that their agenda is rammed through whatever people might think or vote for.
Sorry, fellow citizens, but you have been asleep at the wheel for so many years. So what can you do? You might even consider joining a political party and making your voice heard in a rather angry tone. I know, we are too worried about earning enough and paying the mortgage – I know I am. But if we don’t do something, we are lost. The crumblies (I am one) will probaly see out their lives OK but God help our children and grandchildren.
It’s up to you. This climategate scam is just typical of Britain today. If the common citizen (and I am one) are not willing to get involved and that means shelling out some of your hard earned pounds (a sure test of commitment), then just accept it and you will be ruled by shysters for the rest of your life.
Democracy means you have to do something even if it’s just donating. We have to get after these people and call them to account.
If they want the CRU crews hides tanned, a loophole in the FOIA won’t stop them.
Solomon Green (10:03:06) :
If you have any evidence that this was not done and the documents were destroyed after your request you should make a further complaint to the Information Commissioner.
Deep Throat.
Who are you?
These are but symptoms of a decaying culture, of a decomposing corpse turning into the oblivion, of worms excreta. Fortunately the so called “developed world” doesn’t count anymore but for laughing.
Scientists of the kind of Al “Baby” Gore, James “Death Trains” Hansen, etc.etc are the runner ups of this occidental culture’s armageddon contest.
Let us teach our children and granchildren the ways of truth, let us teach them that it is even fair lying to others but utterly stupid lying oneself.
All what happens it is but a lack of nobility, the lack of the quality of not betraying one’s own convictions. This world shouldn’t be any longer that of the so called monkey minded “winners” who sell their principles, if any, their souls, their individualities, their value as human beings in exchange for “success” , this is the intrinsic, inmanent purpose of this blog’s endeavour: To clearly demonstrate how stupid, how silly it is that attitude and where it leads.
@ur momisugly Justin – part 4 means that the Secretary of State can amend the response time limit from 20 working days, to 60 working days, at his discretion. A Civil Service delay subroutine, if you will!
Regardless of the 6 month issue, this is no surprise coming out of the FOI’s Commissioner’s Office given they were teaching Jones & Co. how to avoid the FOI in the first place:
JONES ON 20.AUG.2009: “Keith/Tim still getting FOI requests as well as MOHC and Reading. All our FOI officers have been in discussions and are now using the same exceptions not to respond -advice they got from the Information Commissioner…. The FOI line we’re all using is this. IPCC is exempt from any countries FOI – the skeptics have been told this. Even though we (MOHC, CRU/UEA) possibly hold relevant info the IPCC is not part our remit (mission statement, aims etc) therefore we don’t have an obligation to pass it on.” [1219239172.txt]
I suspect being humiliated at the court of public opinion will be more important than a criminal prosectiion which might garner the miscreants some sympathy.
Tonyb
The statue of limitations is *6 months*? Yeesh.
That reminds me of one suggestion someone made on this side of the pond re dealing with flag burners –“Make beating the crap out of one a misdemeanor punishable by a $25 fine”.
It is worthwhile visiting the page linked below and then scrolling down to the section dealing with a citizen’s rights under the Environmental Information Regulations. Prosecutions can still ensue under the EIRs if non-compliance can be shown.
http://www.direct.gov.uk/en/Governmentcitizensandrights/Yourrightsandresponsibilities/DG_4003239
The FOI was flawed right from the beginning. It should be renamed “The Restriction of Information Act”.
Firstly, the vast majority of FOI requested information should have been placed in the public domain in the first place, and in other countries similar information already is. Secondly, the FOI’s most pernicious weakness is that it places the right of censorship and withholding of perfectly reasonably requested info in the hands of unelected administrators who should have by definition no powers whatseover in this regard, yet wield that power with a flagrant abuse of their position.
In addition, there are so many “get-out” clauses in the FOI that it has become, far from a democratic unleashing of public information, a mechanism by which public domain information is routinely withheld on the entirely spurious excuses of “not in the public interest”, “breach of official secrets”, “too expensive to retrieve the info”, “vexatious requests”, “national security”, “sensitive information”, “difficulty of gathering the requested info”, and a host of other excuses which render the Act almost useless except for the gathering of the blandest and most anodyne information.
These are not accidental obfuscations but intentional core barriers designed into the whole structure of the Act. I was one of those who smelled a rat from day one of the Act’s announcement. It is not just that it has inherent flaws – these barriers were quite obviously fundamental to the FOI’s creation.
One could argue that we might even be better off without the FOI, since, in formalising and codifying its remit, previous constitutional and traditional means of weeding out public-interest information have largely been overthrown, and now all requests for information are referred to not in the context of the citizen’s right to have that request satisfied, but in the context of what in the FOI allows institutions to get away with, and usually that is the bare minimum.
By constructing a formal edifice that essentially now controls the output of all public information, the very privileges that were already part of the infrastructure of government versus the public’s right-to-know, have been largely overthrown. The Data Protection Act has had a similar effect, and, far from being properly used as a protection of individual privacy, has been far more efficiently used as a method by which public bodies can breach its terms with impunity while at the same time protect themselves from releasing data of interest to the public.
If you read accounts of the seminal instance of the right to know: Watergate, you will see that much of the information leading to Nixon’s demise was obtained without any need for a Freedom of Information Act, and it could be safely argued that if an FOI had existed in the US at that time, the info which lead to an entire government’s destruction could probably not have been obtained, and no doubt such information would have been denied by reference to restrictions in such an Act!
Is it any wonder that violence against governments breaks out when the very laws that are written to keep the scoundrels relatively honest are rigged with loopholes and exceptions? No politician has a right to complain when they get hammered.
@ur momisugly Jeef (11:17:35), Thank you very much indeed.
Hello.
English environmental lawyer here.
As some posters above have noted, the time limit for prosecuting FOI offences is 6 months. This is simply because, as with all “summary only” offences (that is, offences that can only be heard in a Magistrates’ Court – the lowest criminal court in England and Wales), proceedings must be commenced within 6 months of the commission of the offence, unless the statute provides otherwise. Thus any attempt to destroy information in the face of an FOI request is time barred after 6 months.
Interestingly, however, the offence of a criminal conspiracy, is triable only on indictment, that is, in the Crown Court (England and Wales’ highest criminal court of first instance). Generally, unless otherwise indicated, there is no time limit for charging an indictable-only offence, and this is indeed the case for conspiracies. The lack of any so far published response to Phil Jones’ “Destroy all Data” email does not support the existence of a complete conspiracy, but it might nevertheless be regarded as an attempt to conspire to destroy data which was subject to an FOI request. An attempt to conspire could theoretically be charged and punished in the same was as a conspiracy itself. But don’t hold your breath.
All IMNSVHO of course.
The comment at Bishop Hill’s blog that I was referring to:
The last part “…or the matter of complaint arose.” might buy some leeway in time here, if it can be shown that the “matter of complaInt” was not evident until well past the 6 mo. period due to the nature of the process resulting in the complaint. Possibly the argument could be made that offense did not occur until the very last recourse was denied, some time after after the initial request. British shylocks with case law experience will have to comment on this.
I think that the serious offence that has occurred was *conspiracy* to flout evade FOI laws. My vague recollection is that conspiracy carries unlimited prison sentence under English law.
For this reason, Home Rule for Wales agitators in the 1960’s were charged with conspiracy to deface road signs – not with the trivial offence of defacing road signs.
A lawyer who is clued up on English criminal law is needed to confirm and amplify my comment.
With regard to the following:
“Looks like the UK FOI law has only been in effect since 2005.
I don’t have the resources to research UK legal archives, but I would be willing to bet a substantial sum of money that there has *never* been a single successful prosecution under this act.”
The latest iteration of the FOI Act is dated 2002, the previous version was dated 2000. A number of sucessful prosecutions have been brought under the FOI Act against Local Government bodies, some Police Forces and other ‘official’ bodies.