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An Interesting Ex Post Facto Law Case

January 28th, 2010 No comments

It seems the climatologists at East Anglia violated the F.of Info law but cannot be prosecuted under it because it has a 6-month statute of limitations which tolls *from the time of the offence*, rather than from the time of discovery of the offence, as all other statutes of limitations do. This, of course, completely nullifies it for almost all purposes,since you don’t discover this kind of offence for quite some time. As many have noted, this statute, like all statutes, was largely drafted by bureaucrats, its chief target, and Sir Humphrey is a clever guy. He even piled on extra protection: I read somewhere that another provision says that a complaint cannot be initiated till after the organization’s internal investigation process has been completed— which would usually take more than 6 months and which would be run by the guilty organization. Amazing!

Fortunately, all is not lost. They are talking about revising the British law, and they are inviting public comment on that. I really should comment, but someone else ought to make this same point in case I’m too busy.

It is perfectly possible in Britain to revise the law to punish actions that have already taken place. It’s not like in the US where the Constitutions prohibits ex post facto laws. From Wikipedia:

In the United Kingdom, Ex Post Facto laws are strictly frowned upon, but are permitted by virtue of the doctrine of parliamentary sovereignty. Historically, all acts of Parliament before 1793 were Ex Post Facto legislation, inasmuch as their date of effect was the first day of the session in which they were passed. This situation was rectified by the Acts of Parliament (Commencement) Act 1793.[citation needed]

Ex Post Facto criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory, but parliamentary sovereignty, in theory, takes priority even over this.[citation needed]

Thus, if we agree that this is a bad loophole and that these perpetrators and others in unrelated crimes ought to be punished, Britain can do it, by passing a retroactive law. If the Government doesn’t, it doesn’t mean they *can’t* prosecute, it means they *don’t want to* prosecute (which is likely). They need the screws put on them by people pointing this out.

Addition at 9:36 am: Actually, reading a little more at the CA comments, I see that the UK government people might be lying when they say the statute of limitations is 6 months. A comment says (my fonts):

We do not have a statute of limitations as such. But no indictable offences at summary trial are subject to the following:-
The 6 month limit is enshrined in law. Namely, The Magistrates Court Act 1980 :
section 127 Limitation of Time

(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, 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.

(2) Nothing in–
(a) subsection (1) above; or
( B) subject to subsection (4) below, any other enactment (however framed or worded) which, as regards any offence to which it applies, would but for this section impose a time-limit on the power of a magistrates’ court to try an information summarily or impose a limitation on the time for taking summary proceedings,
shall apply in relation to any indictable offence.

(3) Without prejudice to the generality of paragraph ( B) of subsection (2) above, that paragraph includes enactments which impose a time-limit that applies only in certain circumstances (for example, where the proceedings are not instituted by or with the consent of the Director of Public Prosecutions or some other specified authority).

(4) Where, as regards any indictable offence, there is imposed by any enactment (however framed or worded, and whether falling within subsection (2)( B) above or not) a limitation on the time for taking proceedings on indictment for that offence no summary proceedings for that offence shall be taken after the latest time for taking proceedings on indictment.

If that’s all there is, with no speciall statute of limitations for this particular offence, there’s no way it applies. I’m sure in the UK that if someone is murdered by poison, and the fact that he was poisoned is only discovered 7 months later, the murdered doesn’t get off.

See too this 2007 statute of limitations English decision:
http://www.withersworldwide.com/news-publications/262/deliberate-concealment-limitation.aspx

9:48: Yet another CA comment that indicates the 6-months may be just for minor offences, not murder (which is usually specfically exempted anyway, so my example was a bad one):

There is no general period of limitation which applies to criminal proceedings in the UK but there has been a statutory limit of 6 months on very minor offences for centuries.

It’s still the case that a generic SOL law would undoubtedly be interpreted to toll from time of discovery of the crime.

9:58. Is private prosecution still possible in England? If so, this is the perfect case. Easy facts, but the government says it is blocked by law. So a private prosecutor could bring it, the court would say it is legal as the first step in the case, and the government’s duplicity would be revealed. In fact, it would be really cheap, because a full development of the facts would not be needed to get to that stage.

January 30. Here is my submission to Parliament, sent today.

The Clerk
Science and Technology Committee
House of Commons
7 Millbank
London SW1P 3JA
scitechcom@parliament.uk
“Climatic Research Unit”

30 January 2010

Dear Sirs,

(1) I am a well-known economist, specializing in law-and-economics, game theory, and the economic theory of politics. Very likely any economist you ask in the UK will have heard my name, though I am nowhere near Nobel caliber. My vitae is up at http://www.rasmusen.org/vita.htm. I have no financial or other relevant connection to the issue on which I am commenting.

(2) I am writing now with a comment on dealing with Climategate. I write not on what happened at East Anglia, but on a narrow point of law, politics, and procedure that may have escaped your notice. My comment is on your question:

“— What are the implications of the disclosures for the integrity of scientific research?
— Are the terms of reference and scope of the Independent Review announced on 3 December 2009 by UEA adequate (see below)?”

The implications of this case are that criminal concealment of scientific research data in the UK is currently nonpunishable by the government, something which no Independent Review will solve. You need a new bill to punish nondisclosure. This bill could be special to scientific data, and so would, I imagine, be within your remit.

(3) It is said that a statute of limitations prevents prosecution of people undoubtedly guilty of concealing information. I take that as given for points (4) and (5). I am deeply skeptical, however. I have seen The Magistrates Court Act 1980 :section 127, which I do NOT think would apply. This looks more like the kind of excuse that would fool the public but nobody who actually looked into the law. Maybe not— but do ask the lawyers to cite chapter and verse and explain the legal concept of “tolling”.

(4) You can change the statute and prosecute the guilty parties. The US Constitution has a provision banning “ex post facto” laws, which might prevent that in the US (though not obviously— here, the change would merely involve extending the statute of limitations, rather than making an action illegal that used to be legal). You have no such constraint in the U.K. You could even use a mild form of a bill of attainder— a statute to punish one person who is morally culpable but whom the courts for reason of technicalities or favoritism won’t prosecute. So go ahead and change the law, and make it retroactive.

(5) It may well be the case that some people— I do not know who exactly, but I raise this as a possibility— would like to hide behind the statute of limitations to avoid doing their duty and prosecuting this crime. If so, their dereliction should be vigorously publicized. Here is the general idea:

(6) “Mr. X admits that Mr. Y has committed a crime, and ought to be punished, but he says that unfortunately the law was drafted poorly and so punishment is not possible. I have good news for Mr. X. Parliament can change the law, and punish Mr. Y for doing what was already illegal and what Mr. Y knew was illegal but which could not be prosecuted because of a draftsman’s carelessness. I trust I have Mr X’s enthusiastic support for this bill, because I would not like to believe that he is merely hiding behind the technicality to avoid punishing a man he admits is guilty.”

(7) I am, as I said, an economist rather than lawyer, but I have written extensively on law, bureaucracy, politics, and the mathematics of strategy, and that is what I am writing about today.

(8) I will mention one other point which might be useful. The economists at the University of East Anglia are very well regarded in the economics profession. I know a number of them personally from my visit to Oxford a couple of years ago. If you need a reliable, honest, person within the University you could do worse than to search among them.