What did the Times know about computer hacking and when?

The Guardian disclosure raises serious questions about the 2009 NightJack case.

In 2009, the Times "outed" an anonymous blogger. It was a strange exercise at the time. A "quality" newspaper devoted its resources to forcing into the public domain the identity of the author of the popular and extremely well-written police blog known as "NightJack". As Paul Waugh and others noted as it happened, it was somewhat weird and unfortunate that a newspaper which should respect anonymity as a condition for providing useful information was exposing an anonymous writer providing useful information.

Not only did the Times seek to expose the blogger, they even went to the High Court to defend an attempt by the blogger to protect his anonymity. In a detailed witness statement of 56 paragraphs and with 56 pages of exhibits, the journalist purported to show how by using considerable investigative skill and amazing detective work he was able to use minute details over several blogposts to piece together the identity of the blogger. Anyone reading this remarkable witness statement gets a sense that the journalist not only deserved his scoop, he also probably deserved a Pulitzer.

This witness statement (which I possess, but will not publish as it contains personal information about the blogger and his family) was impressive enough to change the course of the court case. As the case report states clearly at paragraph 3:

It was asserted in the Claimant's skeleton [argument - the summary of the claim] for the hearing of 28 May that his identity had been disclosed to The Times in breach of confidence. By the time the matter came before me, on the other hand, Mr Tomlinson [the blogger's barrister] was prepared to proceed on the basis that the evidence relied upon from Mr Patrick Foster, the relevant journalist, was correct; that is to say, that he had been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the Internet.

The concession by the blogger's barrister was in my view determinative of the case. If there was no breach of confidence -- or no wrongful act of any kind in obtaining the information -- then there was really no inherent privacy which the blogger to assert. There was no need therefore for the judge Sir David Eady to see whether the interference with the privacy right was proportionate or lawful; there was no privacy right to begin with. And, as Eady said, blogging is essentially a public activity.

However, witness statements and exhibits do not come about easily. There is considerable input by lawyers. The decision to fight the case would also not have been made by the journalist in question, but by his senior managers. High Court litigation is uncertain and expensive. The decision to fight the case would not have been made lightly. And key to the advice given to senior managers and the decision they made would have been that witness statement. It would have been their decision to put this evidence before a High Court judge, and not that of the journalist.

The decision looked like it paid off. They won, and the Times duly ran the exclusive. Times columnists assured us ponderously that something rather splendid had been done in the public interest. And, in the meantime, the blogger pulled his blog and faced disciplinary action from his employer. The loss of the blog was particularly unfortunate, as it robbed the public of a brilliant insight into the daily lives of police officers written by perhaps the best writer the blogging medium has ever produced.

In my view, there was always something not quite right about what the Times did. The explanation offered smacked to me of being retrospectively compiled and reverse engineered, as if someone had solved a maze by starting at the centre and then worked outwards. I do not know if this was or was not the case. Soon it was clear that these doubts were shared. Just as "everyone" in Fleet Street knew that there was something not quite right about Johann Hari's journalism or the tabloids' use of mobile telephony, it was widely held that something about the exposure of NightJack did not stack up.

But even when it became known that the journalist in question had been disciplined as an undergraduate for hacking into his university computer network (but was still hired by News International anyway), that could not take anything away from the evidence sworn and put before the High Court. The managers and lawyers at Times Newspapers Limited has confidently assured the High Court that their young reporter had single-handedly pulled a journalistic feat comparable to what took over a hundred commenters at Jack of Kent to do for "David Rose".

And so nothing happened, until last week.

Lord Justice Leveson's inquiry team sent out questionnaires to all the newspapers. One of the standard questions was about computer hacking. This clearly caused a bit of an issue for the Times. Over four witness statements the Times admitted the following facts: that there had been a computer hacking incident in 2009 by a male reporter; the computer hacking was in the form of unauthorised access to an email account; a disciplinary process had been commenced after concerns from the newsroom; the reporter admitted the unauthorised access during that disciplinary process; it was held that there was no public interest in the attempted hacking; the incident was held to be "professional misconduct" and the reporter was disciplined; and the reporter is no longer with the business having been dismissed on an unrelated matter.

What was most striking about all this was the date: 2009. Was it possible that the computer hacking was in respect of the exposure of NightJack? This would be a serious matter, for not only would it raise issues under the Computer Misuse Act, it may be that there had been perjury in the case at the High Court. Had computer hacking been admitted to the court then there would have been little doubt that it would have affected the outcome of the case.

So a careful process was commenced. I blogged here yesterday putting together what the witness statements told us whist Paul Waugh at Politics Home made connections between the new evidence and the NightJack case, about which he had previously written. Tom Watson MP, the blogger Old Holborn, and others, asked questions on Twitter. But what was missing was a firm connection: there was no direct link between the new evidence and the NightJack case. It may not have been the same journalist, and it may not have had anything to do with a published story. I sent an email query to the Times (it remains unanswered).

And then, last night, the Guardian stated that the 2009 incident was in respect of NightJack. So, instead of answering a formal email request or properly disclosing it to the Leveson inquiry, a "source" leaked it to David Leigh of the Guardian. This was an odd move, not least because the journalist in question now writes regularly for the Guardian on media matters. (Yes, that irony is indeed correct: the Guardian uses a media correspondent with a record of computer hacking.)

One cannot be certain that the Guardian is correct without further evidence or an open admission. But if it is right, then this opens up some extremely serious questions for the Times. At some point in 2009 the internal managers and lawyers at the Times became aware that the High Court had proceeded on a flawed basis in dealing with the NightJack injunction. This information may have come out before the court hearing or afterwards. They would also have become aware that a major exclusive had been based at least in part on computer hacking. If the Guardian revelation is sound, then it would appear that the Times needs to explain who knew what and when, and why nothing has been done about it until Lord Justice Leveson's questionnaire.

In all this, one should not blame the journalist too much (and you may notice he has not been named in this post other than in the quotation from the case report). He did what one suspects many young and ambitious journalists would do if they could get away with it. The real failure here would appear to be -- as with Hari at the Independent -- one made by managers at the Times, and perhaps those who advise them. If the Times did throw its financial and legal might behind a story which they knew to be based on computer hacking and did not inform the court -- or found out later, and still told no one about it -- then that, in my view, would be a scandal perhaps comparable to the tabloids' abuse of phone hacking.

David Allen Green is legal correspondent of the New Statesman and writer of the Jack of Kent blog

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Show Hide image

Industrial Strategy: Ensuring digital skills are included

The opportunities for efficiency, adaptability and growth offered by digital skills have never been so important to British businesses. The New Statesman asked a panel of experts, including Digital Minister Matt Hancock, Tinder Foundation CEO Helen Milner, Tech City CEO Gerard Grech and Google Policy Manager Katie O’Donovan, to pinpoint the weak spots and the opportunities for a smarter digital skills strategy.

British people spend more per capita online than any other country in the developed world. With 82 per cent of adults using the internet on a daily basis and more than 20 per cent of retail sales taking place online, it would appear that most British businesses are digitally capable. A closer look, however, reveals a significant digital skills gap between larger companies and the small businesses that make up 60 per cent of the private sector – comprising a workforce of over 15 million people, with a turnover in excess of £1.6trillion. Of these small enterprises, a third don’t have a website and more than half are unable to sell goods online. So, are digital skills taking priority in the government’s industrial strategy?

Matt Hancock, Minister of State for Digital and Culture, said digital education from an early age will be a cross-party objective for years to come: “We’re making some progress on this, and one of the most exciting things we did in the last parliament was to put coding into the curriculum from age eight. We’ve recognised that there are down-the-track requirements for digital skills, as much as with English and Maths, and we’ve got a huge array of initiatives to corral the enthusiasm for digital and make sure that it is best used.”

Hancock added that participation in the digital economy is important at every level of business and society: “I can group the facts and figures; 23 per cent of people currently lack basic digital skills, and about 90 per cent of new jobs now need some form of them. I think that what we’ve learnt following the Brexit vote is that the need to engage everybody is more demonstrable than ever before. This is a very important part of the Prime Minister’s agenda, and wider digital engagement is a key part of the broader issue to make an economy that works for everyone.” 

It is this wider opportunity to access and education that forms the bedrock of a new partnership between Google and the Tinder Foundation, aiming to deliver digital skills training to those in society who are most in need. Cue the Digital Garage. The project sees community organisations across the country provide skills support to small businesses, sole traders and indviduals, helping them to make the most of their resources.

Katie O’Donovan, Policy Manager at Google, explained: “Google has a longstanding commitment to train 250,000 people across the UK in digital skills. Since launching the Digital Garage in 2015 we’ve provided mentoring and digital skills training in Leeds, Manchester, Birmingham, Newcastle and Glasgow.  But as the UK faces a new chapter we want to ensure, whether you’re a student looking for your first job, a small business looking to attract new customers or a musician looking to promote your music, the right digital skills are freely available in your local community.

Tinder Foundation CEO Helen Milner recognised that a wider proliferation of digital skills would release a surprising amount of value into the economy. “Some of our research showed that every £1 invested in growing people’s basic digital skills put £10 back into the economy. But it’s not enough to save money - you’ve got to show how you can make money out of it as well.”    

The Labour MP for Aberavon, Stephen Kinnock, has seen at first hand the benefits of support for digital skills, and welcomes opportunities for partnership in his constituency. The shift from manufacturing, he accepts, needs direction and following the depletion of his local steel works he views digitisation as “the only way forward.” Kinnock added that exciting projects such as the Swansea bay region or ‘internet coast’ becoming a testbed for 5G could serve to re-energise communities which are in many ways in a state of decline. Kinnock said: “I’m absolutely delighted that we’re going to have pop-up versions of the Digital Garage in Port Talbot.”

CEO for TeenTech Maggie Philbin, meanwhile, stressed that digital education at school level must be taught through the lens of practical application. She warned: “Many young people aren’t greeted by any coherent messaging in school, so they don’t see why they’d need digital skills in the workplace. We’ve got to start getting a better message across and improve the opportunities for actual work experience that harnesses these skills.”

Karen Price, CEO at The Tech Partnership shares this view. For Price, adapting apprenticeships to incorporate digital skills will help to inspire a culture of innovation. She suggested that “if that's part of an apprenticeship that could be polished to use in a business environment, you'd have a digitally capable young person who could probably move that business on in a different way.”

Nick Williams, Consumer Digital Director for Lloyds Banking Group, views improving people’s digital skills as a matter of urgency and brought up research conducted by the company’s new Business Digital Index for 2016 which found that 38 per cent of small businesses and 49 per cent of charities are currently lacking digital maturity. “It’s no longer a matter of choice,” Williams said, “for organisations to survive, we must focus on a digital message.  Technology’s moved on and people just haven’t kept up. We have to show how these new skills can translate to greater productivity. Ability and access are the two variables to address. We are on the brink of going down the route of a digital divide – those who are capable and those who aren’t – and we’ve got to stop that.”

Rachel Neaman, Director of Skills and Partnerships at Doteveryone, was quick to pick up on this point. She warned that any digital training must not simply be for future generations’ benefit, but also be afforded to those already in work. “What are we doing for the people who currently lack these skills? How do we stop people from being left behind?” Neaman called for an “equal emphasis” on updating and upgrading the existing workforce. Julian David, the CEO at Tech UK, was also keen to highlight that digitisation is “an ongoing process” and therefore “retraining” at regular intervals is needed to cope with a continually evolving demand.

While Hancock spoke of a “unit-based standard learning system”, similar to that used in American schools, to help apply digital skills training where it is most appropriate, IPPR North researcher Jack Hunter said there were real opportunities to be grasped in the coming devolution agenda: “The new mayors that are coming in next year to drive the agenda and economic growth are going to be getting a lot more funding around a variety of different skills streams that feed directly into the digital programme.”

The panel agreed that the digital divide will only grow wider if action is not taken. Director of the Action and Research Centre at the RSA Anthony Painter said that society is being split into two camps: “the confident and creative, and those who feel held back.” Painter recommended that the latter group are given a fresh chance at being empowered digitally. He said: “They don’t tend to use the internet for professional development, whereas the others do. We’ve been having a look at this locally by creating a ‘City of Learning’ which combines a digital platform built around open badges which have micro-accreditations for learning; things that if you get someone’s passionate interest and then start feeding into more formal learning opportunities then you wrap around that a sort of city-led campaign which lets them identify with a common cause – we’re a learning city.”

Tech City UK CEO Gerard Grech concurred and went to explore the link between a strong web presence and business expansion or improvement. The problem identified is that many businesses may not realise the extent of their digital capabilities and thus run the risk of missing out. Grech said: “If you ask a window cleaner if they are a digital business, they might say no, but if you ask how they might go about quoting someone, they could find the address on Google Maps or get the Street View. That’s the idea, to show how digital can be used for them.”

Ultimately, the panel concluded, that the enthusiasm to add a digital depth to Britain’s talent pool was validated by its potential advantages. “A lot of the major challenges facing the economy,” Painter summed up, “are actually rooted in skills. Whether it’s the challenges of Brexit or the challenges of broadband, I think if you fix the skills, everything else falls into place.” The panel agreed that any government has a responsibility to champion digital strategy throughout society, regardless of location or economic standing, and equip businesses with the digital skills required to perform at their best.  

The round-table discussion was chaired by Kirsty Styles.

For more information, visit: https://digitalgarage.withgoogle.com