Yesterday the London Times broke the latest news on the fate of disgraced British climatologist Phil Jones, of the University of East Anglia (UEA). Jones breached the Freedom of Information Act (FOIA) by refusing to comply with requests for data concerning claims by its scientists that man-made emissions were causing global warming. The Times reports that the UK Information Commissioner’s Office (ICO) decided that the UEA failed in its duties under the Act but said that it could not prosecute those involved because the complaint was made too late.
What the Times and the rest of the media are overlooking is that the Crown Prosecution Service (CPS), not the ICO, is responsible for announcing the results of the police investigation into the Climategate scandal. The ICO is merely a non-departmental public body which reports directly to Parliament, sponsored by the Ministry of Justice and deals solely with data protection, FOIA regulations, privacy, electronic communications regulations and environmental regulations.
What is not being intelligently reported is that Jones is still liable as lead conspirator in the UK’s Climatic Research Unit (CRU) and may face prosecution under the United Kingdom Fraud Act (2006). If convicted of the offense of fraud by either false representation, failing to disclose information or fraud by abuse of his position, he stands liable to a maximum penalty of ten years imprisonment.
In this article I shall demonstrate that the fuss over the FOIA infringement, although in itself succeeding in achieving no conviction, does demonstrate that the ICO has acted improperly and may have prejudiced the outcome of any prosecution Jones may face for far more serious offenses for false representation (section 2) and failing to disclose information (section 3) under the Fraud Act (2006).
I strongly urge interested readers to study the article shown here, written by Norman Baird, for a fuller explanation of the scope of the Fraud Act (2006) and the implications in the Professor Jones scandal.
Although the offense of fraud may be committed in three ways, we shall only need to apply two in finding reasonable grounds to bring a prosecution in this case. All three forms of the offense require proof of dishonesty and an intention (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. “Gain” and “loss” are limited to gains or losses in terms of money or other property.
The forms of fraud directly relating to Phil Jones are:
- A fraudulent representation is an assertion which is untrue or misleading and which the person making it knows is, or might be, untrue or misleading. ( s2(2) ).Subsection (4) provides that a representation may be express or implied. There are no restrictions or limitations in the way in which a representation is communicated. It may be written or spoken and may be transmitted by email or by way of website.
- This form of the offense applies where a person dishonestly fails to disclose to another person information that he is under a legal duty to disclose. The ICO admits Jones is guilty of failing to disclose climate data. The question whether a legal duty exists is a matter of the general law. A legal duty may arise by virtue of a fiduciary relationship between the parties (fiduciary duty is a legal or ethical relationship of confidence or trust between two or more parties).
The CRU Email Evidence
From a full examination of excerpts from leaked CRU emails cited below, it is readily demonstrable that the police and Crown Prosecution Service currently possess sufficient evidence to charge Phil Jones under both sections 2 & 3 of the Fraud Act (2006). I shall cite liberally from Jones’ own email admissions, in conjunction with also citing liberally the much-acclaimed analysis of all the leaked UEA emails by Australian physicist, John Costella. Dr. Costella’s excellent study is available here.
I have used my own judgment to assess which of Jones’ emails are the most damning. Bear in mind that a defendant incriminates himself by any admission he may make.
On January 16, 2004, in leaked CRU email 1074277559 exchange Jones frantically urges Penn State University climatologist, Michael Mann, to delete data:
Subject: Climatic Change needs your advice—YOUR EYES ONLY !!!!!
This is for YOUR EYES ONLY. Delete after reading—please! I’m trying to redress the balance. One reply from Christian Pfister said you should make all available!! Pot calling the kettle black—Christian doesn’t make his methods available. … I told Steve separately, and told him to get more advice from a few others, as well as Kluwer (publishers), and the legal department.
PLEASE DELETE—just for you, not even for Ray Bradley and Malcolm Hughes.
Dr. John Costella’s commentary on the above is, “Jones’s blind panic—in private to Mann—speaks volumes. He is so scared of the ramifications that he even asks that Mann destroy the email immediately. Are these the actions of scientists with nothing to hide?”
In the leaked emails of February 4, 2004, email 1076083097 exchange, we read that a large number of climate con collaborators are discussing ways to avoid providing independent Canadian climate analyst, Steve McIntyre, with enough of the computer programs to actually check their results. Linda Mearns, Senior Scientist at the Institute for the Study of Society and Environment at the National Center for Atmospheric Research, writes:
My point about the computer programs is still that “providing the programs” can be interpreted a lot of ways. I have thought about this, and imagined if in one of my larger and more complex projects, I was asked to provide all the programs. I could do that just by sending the pieces with a summary file explaining what each piece was used for. It still theoretically allows someone to see how the programming was done. And I do think that is a far sight easier than providing stuff that can be run, etc. I am suggesting that one could do the minimum. Then the point is, one isn’t faced with garish headlines about “refusal to provide programs”. I think it is harder to come up with a garish headline about “refusal to provide completely documented programs with appropriate instructions files and hand-holding for running it.
Mearns’ argument is effectively this: if we are forced to provide the computer programs, then let’s break them up into the smallest possible pieces, so that McIntyre can see roughly what we have done, but would have an almost impossible task putting the pieces back together again so that it could be used—sort of a “Humpty Dumpty.”
Phil Jones realizes that this won’t fool many: if they had done the science properly, then the computer programs and supporting documentation would be readily available for anyone to use, without any further work.
Jones then replies:
So now it seems that we’re separating “providing the programs” from “running the programs.”
I can’t see the purpose of one without the other. Even if Mike Mann complies, I suspect there will need to be several sessions of interaction to explain how to run the programs, which neither side will be very keen on.
Jones is savvy enough to understand that providing un-runnable programs will lead to an immediate request or demand for assistance in actually getting them to run.
Jones then admits that, even with possession of the programs and the data, a lot of “fiddling” is needed to get to their claimed results:
As I said before, I know that running the programs will involve lots of combinations (for different time periods with different temperature proxies).
Jones further realizes that validating their programs would require validating their mathematical “number-crunching” programs—often shared between different programs, and hence called “library routines”:
Also I would expect, knowing the nature of the mathematical approach that we use, that there will be library routines. We don’t want McIntyre (and McKitrick) to come out and say that he can’t get it to work after a few days.
So, it is far from simple. I’m still against the computer programs being given out. Mike has made the data available. That is all they should need. The method of calculations is detailed in the original paper … and also in several other papers Mike has written. In other words, the skeptics have a description of what was done which should be enough.
Then this bombshell:
As an aside, Mike Mann is now using a different method from the paper of Mann, Bradley, and Hughes of 1998.
So even if McIntyre and colleagues follow the method described in the 1998 paper, they still won’t obtain agreement with what Mann is now doing! Could there be any clearer argument for providing the exact computer programs and methodology used for each and every published paper? Jones apparently can’t fathom the ridiculousness of his own words.
It might appear that they want the programs to check whether their version works properly. If this is the case, then there are issues of Intellectual Property Rights. So, if they get the programs, how do we stop them using it for anything other than this review?
God forbid that any other scientists should be given assistance in researching this issue of critical importance to humanity! Jones’s treatment of their data and research as “private property”, for them to exploit and profit from—to the exclusion of all other scientists—is obnoxious and unlawful, particularly as it is paid for by taxpayers and subject to full FOIA disclosure!
Phil Jones replies to an email from another climatologist, Van Ommen, on February 9, 2004 in email 1076336623 exchange copying in Mike Mann:
Thanks for the email. Steve McIntyre hasn’t contacted me directly about the Antarctic data (yet), nor about any of the data used in the 1998 Holocene paper or the 2003 Geophysical Research Letters one with Mike. I suspect (hope) that he won’t. I had some emails with him a few years ago when he wanted to get all the station temperature data we use here in Climatic Research Unit. At that time, I hid behind the fact that some of the data had been received from individuals and not directly from Met(eorological) Services through the Global Tele-communications Service (GTS) or through the Global Climate Observing System.
We here start to learn about the tricks that Jones and colleagues have used to thwart attempts to get access to the dodgy data that their published claims are based on. In this case, Jones is trying to argue that data provided by individuals does not need to be provided for independent scrutiny—another intent to conceal fraud.
Emails have also been sent to some other paleoclimatology people asking for data sets used in 1998 or 2003. Keith Briffa here got a request, for example. Here, they have also been in contact with some of Keith’s Russian contacts. All seem to relate to trying to get data that we’ve used. In the Russian case, issues relate to the Russian (Rashit Hantemirov) having a paper out with the same data that Keith used ….The data are different for two reasons. One reason is that Keith used (a mathematical method on the data); and, secondly, Rashit has added some data since Keith got the data a couple of years ago.
Jones is here giving yet more reasons why the original data should be made available. So what will he do?
I’ll just sit tight here and do nothing. Mike will likely do the same, but we’ll expect another publication in the nearish future.
This is clearly the guilty mind legal component, or ‘mens rea’ – intent to cover the fraud by ‘sitting tight’ – refusing to comply with FOIA disclosure – and implies Jones conspired to do so with Michael Mann.
So not only will they ignore all requests for the data—and hide behind dubious loopholes to do so—but they are moreover planning to continue publishing papers based on all this “private” (fraudulent) data, adjusted by their own private mathematical methods!
On January 21, 2005 Jones corresponds again in email 1106338806 exchange.
Phil Jones is confident that it won’t be a problem in continuing to decline FOIA requests:
On the Freedom Of Information Act, there is a little leaflet we have all been sent. It doesn’t really clarify what we might have to do regarding programs or data. Like all things in Britain, we will only find out when the first person or organization asks. I wouldn’t tell anybody about the Freedom Of Information Act in Britain. I don’t think the University of East Anglia really knows what’s involved.
However, he also starts the process of finding loopholes in the legislation with fellow climate scientist conspirator, Tom Wigley:
As you’re no longer an employee, I would use this argument if anything comes along.
Tom Wigley replies:
Thanks for the quick reply. The leaflet appeared so general, but it was prepared by the University of East Anglia so they may have simplified things. From their wording, computer programs would be covered by the Freedom Of Information Act. My concern was if Sarah is/was still employed by the University of East Anglia. I guess she could claim that she had only written one tenth of the programs, and therefore only release every tenth line of the programs.
Another interesting attempt to conspire to fraudulently wrangle a loophole, albeit unlikely to succeed. Phil Jones replies, refining the loophole even further:
As for the Freedom Of Information Act, Sarah isn’t technically employed by the University of East Anglia and she will likely be paid by Manchester Metropolitan University.
Not that she wouldn’t be covered by the Act: merely that she would be paid by a different University!
I wouldn’t worry about the computer programs. If the Freedom Of Information Act does ever get used by anyone, there is also Intellectual Property Rights to consider as well. Data is covered by all the agreements we sign with people, so I will be hiding behind them. I’ll be passing any requests onto the person at the University of East Anglia who has been given a post to deal with them.
On February 2, 2005 in email 1107454306 exchange Phil Jones writes to Mike Mann:
Just sent loads of … data to Scott Rutherford. Make sure he documents everything better this time!
So it isn’t until 2005 that they decide it is time to document what they are doing?
And don’t leave stuff lying around on anonymous download sites—you never know who is trawling them. McIntyre and McKitrick have been after the Climatic Research Unit … data for years. If they ever hear there is a Freedom of Information Act now in the United Kingdom, I think I’ll delete the file rather than send it to anyone.
Bingo! Proof of intention (mens rea) to commit a criminal destruction of evidence–all we need now is proof of the destruction/loss of data the (actus reus) to have the two requisite components of a crime ( the guilty state of mind and the actual commission of the crime).
Jones then discusses (conspires) to find other way to unlawfully subvert the FOIA law:
We also have a Data Protection Act, which I will hide behind.
Again, “hide behind” reveals intent to conceal the original fraud of falsification of climate data.
Tom Wigley has sent me a worried email when he heard about it—he thought people could ask him for his computer programs. He has retired officially from the University of East Anglia so he can hide behind that….Intellectual Property Rights should be relevant here, but I can see me getting into an argument with someone at the University of East Anglia who’ll say we must adhere to the Freedom of Information Act!
Again, proof Jones will “argue” against compliance betraying his guilty frame of mind, in seeking to pervert the law — further deepening his admissions to commit a crime.
On February 21, 2005 in email 1109021312 exchange Phil Jones writes to colleagues, Mike Mann, Ray Badley, and Malcolm Hughes, regarding news reports that Mann will be forced to release his data:
The skeptics seem to be building up a head of steam here! …
Leave it to you to delete as appropriate! ….PS I’m getting hassled by a couple of people to release the Climatic Research Unit … temperature data. Don’t any of you three tell anybody that the United Kingdom has a Freedom of Information Act!
Again, we have Jones admitting to coercion of others to join him in and conspire to conceal the legal duty he has as CRU leader and hide his climate data fraud.
On July 5, 2005 Jones makes further damning admissions in email 1120593115 exchange where Phil Jones sends an article and a blog entry to climate scientist John Christy:
This quote is from an Australian at the Bureau of Meteorology Research Centre, Melbourne (not Neville Nicholls). It began from the attached article. What an idiot. The scientific community would come down on me in no uncertain terms if I said the world had cooled from 1998. OK, it has, but it is only 7 years of data and it isn’t statistically significant.
Again, Jones’s ability to concisely summarize the key facets of this climate temperature fraud is remarkable. While Jones is admitting to the truth in private, he has CRU making public statements that are knowingly fraudulent under the terms of the Fraud Act. Can you imagine how intimidated the more junior scientists would be?
On August 4, 2005 email 1123163394 exchange Jones now makes a remarkable comment, about something that is elementary to even high-school science experiments:
There is an issue coming up in the Intergovernmental Panel on Climate Change. Every graph needs uncertainty bars, and having them is all that matters. It seems irrelevant whether they are right or how they are used.
In other words, he is only concerned that they give the appearance of estimating the uncertainties in their predictions, rather than actually getting those (subtle and difficult) vital calculations right –- an obvious deceitful act and thus a further offence under the UK Fraud Act — fraud by false representation (Section 2)
On January 5, 2007, the email 1168022320 exchange from Phil Jones to many:
I’ve added a few extra names in the cc of this email list to see if we can definitively determine where Figure 7.1c from the 1990 Intergovernmental Panel on Climate Change Report comes from. The background is that the skeptics keep referring back to it and I’d like to prove that it is a schematic and it isn’t based on real data, but on presumed knowledge at some point around the late 1980s.
Wonderful! Fake graphs presented in the Intergovernmental Panel on Climate Change Report—but only disclose that once the skeptics take note of it? More fraud by false representation (see: Fraud Act, Section 2).
Ascertaining Phil Jones’ Guilt
The UK Crown Prosecution Service may fairly construe in their case that Professor Jones et al. continued in their concealment (the act of the offense) throughout the course of those FOIA applications. Thus, this constitutes an offense of continuous unlawful conduct that would, in turn constitute what is known in English criminal law as a “compound allegation.”
The continuing act will continue for as long as the defendant sets about the business of committing or covering up the crime. Jones was covering up his criminal acts right up to November 19, 2009. His concealing of his crimes until that date keeps all such offenses “live” because the act of covering up the crime is, itself, a crime.
The Fraud Act (2006)
The Fraud Act (2006) tells us we must ask the following questions to ascertain the measure of the defendant’s guilt:
“whether a defendant’s behaviour would be regarded as dishonest by the ordinary standards of reasonable and honest people. If answered positively, the second question is whether the defendant was aware that his conduct was dishonest and would be regarded as dishonest by reasonable and honest people.”
Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4.
Subsection (2) defines the meaning of “false” in this context and subsection (3) defines the meaning of “representation”. A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading.
Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.
Section 3: Fraud by failing to disclose information
Section 3 makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of “legal duty” is explained in the Law Commission’s Report on Fraud, which said at paragraphs 7.28 and 7.29:
“7.28 ..Such a duty may derive from statute [ e.g. obligation to release data as per a Freedom of Information (FOI) request]”
Section 7: Making or supplying articles for use in frauds
Section 7 makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. [e.g. a computer model designed to falsely represent warming global temperatures]. Subsection (2) provides that the maximum custodial sentence for this offense is 10 years.
Section 8: “Article”
Section 8 extends the meaning of “article” for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form.
For a full and detailed explanation of every facet of the Fraud Act (2006) visit this Crown Prosecution website page.
In conclusion, we may determine that Professor Jones’ conduct may be found by a Crown prosecutor to be sufficient to obtain a conviction against him for obtaining services dishonestly (government climate research grant funds) and of possessing, making and supplying articles for use in frauds (climate data, graphs, computer models).
The Fraud Act creates serious offenses of dishonesty and the statute of limitations is six years. Unless the factors against prosecution outweigh those in favour, a prosecution will normally take place. The offense is triable either way and carries maximum 10-year sentence or a fine (or both) on indictment.
Possibly related posts:
- Prosecutor humiliated in Climategate U-turn:
- UK Freedom of Information Act “flaw” prohibits prosecution in Climategate scandal
- British climate professor John Mitchell may face fraud charges
- Phil Jones admits withholding scientific data
- Exclusive: Q&A on Climategate with Britain’s Chief Police Officers