At first glance the High Court’s unanimous decision early this year freeing Cardinal George Pell from Victoria’s Barwon Prison has nothing to do with climate change, or with a celestial tea-pot orbiting the sun somewhere between Earth and Mars. Yet they do have something in common: the burden of proof.
Preamble: If there was a chill in the almost empty Brisbane courtroom on the morning of April 7, 2020, when Chief Justice Susan Kiefel delivered the Court’s 43-page decision on case number M112/2019 – Pell v The Queen - just after 10am, it probably had more to do with a contagious corona virus, faulty air conditioning or the wailing of Cardinal Pell’s persecutors than anything atmospheric. The decision’s catchwords provide a summary of the legal matters considered and jargon used in the proceedings.
At 12.38pm on the same day, Michael Pelly, The Australian Financial Review’s legal affairs editor, posted an article on the case: High Court gives a lesson on reasonable doubt. “The High Court’s decision on George Pell has not only overturned a jury verdict”, wrote Mr Pelly, “it has also upended the criminal justice system.”
The High Court’s message was clear: “you can’t hang on to the credibility of a witness when the improbabilities are piling up. In doing so, a court can end up reversing the onus of proof, effectively making the accused prove he or she is not guilty. And that’s what happened to George Pell.” There was, the Court concluded, “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.
The burden, or onus, of proof is the obligation to present evidence on the subject of a lawsuit or criminal charge. That is, to prove or disprove a disputed fact or claim. The more serious the consequences, the higher the burden – or standard – of proof. Visualise it as a pyramid: with reasonable suspicion – “reasonable basis to believe” – at the base and beyond reasonable doubt– “eliminating all reasonable doubt” – at the apex, with three “layers” between them, in descending order: clear and convincing evidence – high probability; preponderance of evidence – more likely than not (greater than 50 per cent); and probable cause – “facts and circumstances that lead an ordinary person to believe.”
Reversing the burden of proof is a big deal because of the presumption of innocence. A defendant is innocent of a crime unless the State can prove otherwise beyond reasonable doubt. The presumption relieves a defendant of the burden of proving her or his innocence.
The Case: Consider a situation, Your Honour, where a learned profession becomes so concerned by persistent public scepticism – or indifference – about its work that, in an attempt to validate it by other means, it appropriates legal jargon and shifts the burden of proof.
This is not a hypothetical matter. It has been tactic used by climate change activists for more than a decade, including environmental attorney Barbara Freese. Her recent post: The Hubris of Denial: Risk, Doubt and the Burden of Proof. What we have here is a case with argumentum ad populum, argumentum ad ignorantiam, and petitio principii on steroids: “this product is the best because it has the highest price”, “this climate is the most dangerous because it has the highest CO2”, and so on and so forth. Various fallacies were tossed into the maelstrom too: bandwagon, hasty generalisation, slothful induction, correlation-causation confusion, goal-post shifting and appeals to authority, such as the much trumpeted “consensus”.
Procedural history: Big Climate made its first complaint against the defendant at the 1992 Earth Summit in Rio de Janeiro. The complaint wholly depended upon an unquestioning acceptance of the truthfulness and reliability of certain claims, which remain controversial to this day. In subsequent trials of the charges, juries have been unable to agree on a verdict. As for Paris 2015, it was a Folies Bergère for bureaucrats, not a court.
Frustrated by a lack of progress, Big Climate tried a new tactic in Trenberth v CO2 . Dr Kevin Trenberth, originally a New Zealand meteorologist, was – and still is today – with the Climate Analysis Section at the US National Center for Atmospheric Research. The defendant was again the molecule, carbon dioxide aka CO2, comprising a mere 416 parts per million of the atmosphere, or 0.041 per cent. Its alleged offences are many: from upsetting climate “stability” in various ways, to threatening the very existence of life on Earth.
Your Honour, I ask the Court to reflect for a moment on how such an invisible trace gas, one so vital to life, could be accused so unjustly? Are the villains in this pantomime anthropogenic carbon dioxide and its partner-in-crime, “climate change”? Or are they the folk who have spent their professional lives developing the tricks of the climate trade, gaming uncertainty by weighting the climate dice, confident that our survival depends on controlling the uncontrollable, the planet’s climate?
Yet we are unable to control population growth or a pandemic. Such chutzpah. As Hamlet lamented: “what a piece of work is man, yet Mann delights not me!”
Your Honour, those who appropriate legal concepts to try and persuade the public that their so-called predictions are – or resemble – genuine laws of Nature must expect further scrutiny. After all, are they not in the same category as other high priests, including the haruspices of Ancient Rome? They seem too eager to underwrite Big Climate’s obsession with climate reparations, too afflicted by confirmation bias to be beyond suspicion. Have darker Machiavellian impulses, perhaps even a yearning for celebrity, affected their judgment. That their claims rely more on computer modelling – aka “in silico experimentation” – and less on traditional methodologies, such as observation, empirical testing and falsification, surely must temper our eagerness to accept them.
We know the climate has been in a state of change ever since the Earth acquired an atmosphere. One cannot simply assert certain causal links exist without evidence, however high the stakes.
I refer the Court to a recent book: Climate Change: 40 Ways to Win a Pro Global Warming Argument. The reviewer, I suggest, hits a big nail on the head.
Mischa Wu’s all-encompassing error can be put down to the lack of proof of causality. To spew out a lot of factoids suggesting the climate is changing does not prove anything. Everybody knows that. The issue of climate change is who or what is causing it. This book, and the entire climate fear industry, does not make a competent scientific case that it is humankind. It only makes the case that a group of ill-informed tribalist ninnies are fearful. — reviewer T Hedgewick
So to the business.
Exhibit A: Russell’s tea-pot
Lord Bertrand Russell, could you explain to the Court the precise meaning of your cosmic tea-pot analogy and its relevance to this case?
Russell: Certainly. It seemed – and still seems – to me an excellent way to enlighten people as to why the philosophic burden of proof should be on the person making unfalsifiable claims, rather than shifting the burden of disproof to others.
If I told you that a celestial teapot was orbiting the Sun somewhere in space between the Earth and Mars but that you could not see it, nobody would be able to disprove me; but if I were to go on to say that, since my assertion cannot be disproved, it is intolerable presumption on the part of human reason to doubt it, I should rightly be thought to be talking nonsense.
Thank you. So, if a climate scientist were to assert, without offering proof, that there is a “discernible human influence” on climate change because – for example – without it climate models, singularly or collectively, do not work “properly” (or at all), presumably he or she could not expect anyone to believe him or her solely because his or her assertion could not be proven wrong.
Your Honour, we are dealing with post-normal science, with pseudoscience. How can Big Climate reverse the burden of proof when it is full of unfalsifiable claims?
Yet this is what happened in Trenberth v CO2 . An argument by default surely has no place in a court of law. Dare I ask: what if the models are wrong? As we shall see in a moment, at least one high-profile modeller maintains they are “not fit for purpose”.
Exhibit B: Trenberth v CO2 
Trenberth v CO2 began in late January 2011, at the annual meeting of the American Meteorological Society (AMS) in Seattle, Washington. In a Joint Presidential Session on Communicating Climate Change, Dr Trenberth gave a paper, Communicating climate change and thoughts on Climategate, published here on November 3, 2011. In it he shifted the burden of proof onto the defendant:
Prior to the 2007 IPCC report, it was appropriate for the null hypothesis to be that ‘there is no human influence on climate’ and the task was to prove that there was… Given that global warming is ‘unequivocal’, and is ‘very likely’ due to human activities to quote the 2007 IPCC report, the null hypothesis should now be reversed, thereby placing the burden of proof on showing that there is no human influence… As a whole the community is making too many type II errors (erroneously accept the null hypothesis when it is in fact false).
Yet the “discernible human influence” claim had a long and dodgy history. When John L Daly examined the evidence in June 1997, he found instead there were “mounting external pressures [presumably from the IPCC] for some unambiguous sign of human climatic impact”. For him the claim indicated “only that there is today a discernible human influence on global climate change science”.
Our reaction to Dr Trenberth’s essay is that the statement appears less about scientific analysis than about policy and winning a battle against the ‘deniers’ and reluctant politicians. In this sense, his essay comes across as a polemic. Trenberth is using the idea of reversing the null hypothesis as a metaphor for changing the political balance in the climate change debate….His proposal has little to do with scientific hypothesis testing, but is based on an opinion concerning the appropriate actions for responding to [the alleged] dangers of anthropogenic climate change.
It removes the need for scientists to continually make an argument that anthropogenic activities are influencing extreme weather events. Trenberth’s attempt to seize the climate battlefield terrain under the metaphor of [reversing] the null hypothesis [and burden of proof] has elements of an effective polemic.
The net result of such a strategy may be to further inflame the ‘climate wars’ and place climate scientists in a position where they are perceived as moving away from a real discussion and debate on the scientific issues. Reference
Polemic, Your Honour, is not science, nor is politics.
Dr Trenberth concluded with this statement:
Moving towards a form of operational real time attribution of climate and weather events is essential, but needs to recognize the shortcomings of models and understanding – or the uncertainties, as my late friend, Stephen Schnieder would say. Given that global warming is unequivocal, the null hypothesis should be that all weather events are affected by global warming rather than the inane statements along the lines of “of course we cannot attribute any particular weather event to global warming”. That kind of comment is answering the wrong question. Reference
Dr Trenberth performed one of this century’s great conjuring tricks that day in Seattle. He gave his profession job security. He also gave it if not a license to print money, then one to ask for it in perpetuity. For despite decades of research, the climate cabal still wants more, and of course bigger computers too.
As for “operational real-time attribution of climate and weather events”, it remains a pipe-dream. Indeed, according to physicist Tim Palmer and Bjorn Stevens, “many key applications that require regional climate model output or for assessing large-scale changes from small-scale processes, we believe that the current generation of models is not fit for purpose.” (October, 2019)
Reversing the burden of proof, Your Honour, and asserting all weather events are affected by global warming, makes it much easier for Big Climate to publish nonsense claims and get away with it. The defendant, CO2, suddenly becomes its default explanation for everything otherwise inexplicable.
Exhibit C: Climate Change on Trial
Big Climate’s ambition to “tease out the influence of human-caused climate change from other factors”, and the entire alarmist movement, depend on delivering a legal argument that will underwrite all the “loss and damages” claims made by alleged victims of “carbon pollution”, most of them apparently unaware of Plimer’s Law: carbon is a girl’s best friend.
To achieve that goal and maintain public anxiety, it created an Attribution of Climate-related Events (ACE) initiative. The first workshop was held on January 26, 2009, in Boulder, Colorado, at the National Center for Atmospheric Research (NCAR) Mesa Lab. The aforementioned Dr Trenberth (NCAR) was one of the attendees.
Surprisingly, the group has yet to agree on a definition for “cause”, at least according to this paper:
Among other lacking items [in the event attribution framework], perhaps the most important one regards the absence of definition for the word cause. Several recurrent controversial arguments in the realm of event attribution may possibly be related to this lacking definition of causality: for instance, an argument often made (Trenberth, 2012) is that any single event has multiple causes, so one can never assert that CO2 emissions, nor any other factors, have actually caused the event. (A. Hannart et al, Causal counterfactual theory for the attribution of weather and climate-related events, American Meteorological Society, January 2016, p. 100)
Big Climate also has had to simulate a hypothetical or “counterfactual world”.
Most unfortunately, in the climate sciences, no such sample of Earth-like climate systems is accessible to natural observation and even less so to experimental testing … With such strong limitations on the natural observation side and with in situ experimentation inaccessible, we are left with the only remaining alternative: so-called in silico experimentation. (Hannart et al, p. 105)
Yet as the Court just heard, current climate models are not fit for purpose:
Another serious difficulty is that climate models, including the most detailed GCMs, are simplified representations of reality that are affected by both numerical and physical modeling errors. Thus, the real causal effects may differ from the model causal effects. (Hannart et al, p. 106)
Such admissions rarely appear in Big Climate’s media releases or public statements. They remain the dark secrets in the alarmist attic.
Fortunately, we have the concept of tendency evidence. We use it to establish if a person has or had a tendency to (i) act in a particular way; or (ii) has or had a particular state of mind: in this case alarmist, hysterical or deranged by climate grief.
What we have heard in this case leads to only one conclusion: he (she, they, and it) did it before; he (she, they, and it) have a propensity to do it; so the likelihood is high that he (she, they, and it) did – or would do – it again: namely dupe the gullible and corrupt public policy by reversing the burden of proof.
Big Climate’s reversal of the null hypothesis – that there is no discernible human influence on the climate – is a polemic. It is not based on science. It is merely a strategy for persuading the political class to dismiss the insights of sceptics and so-called “deniers”.
So Big Climate must bear the burden of proof.
I rest my case, Your Honour.
Conclusion: The compounding improbabilities caused by the unchallenged evidence summarised above required the Court, acting rationally, to have entertained doubts as to the applicant’s guilt.
In the Court’s judgment, there is a significant possibility that an innocent molecule, CO2, has been convicted and that Big Climate’s so-called evidence has not established its guilt to the requisite standard of proof.
Orders: For the above reasons, the Court makes the following orders, that: (a) all Big Climate’s claims against CO2 be dismissed; (b) CO2’s appeal be allowed; and (c) the appellant’s convictions be quashed and judgments of acquittal be entered in their place. The case is closed.
Earl Grey or Russian Caravan, anyone?