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.)

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Young voters lost the referendum but they still deserve a future

It's time to stop sneering at "crap towns" and turn them into places young people want to stay. 

What a horror show. A land-slide 75 per cent of young people voted in favour of Europe. The greater numbers of the over 65s met that force with 61 per cent against. Possibly the greatest divide in our country turned out to be not gender, not race, not even party politics, but age. The old and the young faced off about how to run our country, and the young lost. 
 
What have we done to our future? Well, whatever happens now, leadership is required. We can’t afford to have the terms of the debate dictated by Brexiters who looked as shocked at the mess they have made as Stronger-Inners are distraught. We can’t afford to wallow either. Young people across this country today are feeling worried and let down – failed by all of us - because when their future was on the line, we were unable to secure it. We – those who believe we achieve more by our common endeavour - all feel that deep worry, and all share in that shame.

How we should all rue the choice not to allow 16 and 17 year olds to vote. And quickly re-ignite the campaign for votes at 16.

But young people don’t need our worry or our pity or our shame. They need a better chance and we need to give them one. I believe passionately that the future for this country was as a leader in Europe, but that does not mean we give up on our future now. For Labour, the challenge now is to work out how we can build a better future for all our people and communities. The sky has not fallen. The UK is still a rich country.

Beat recession with better housing

Let’s start with housing and development. It is no longer good enough to simply set targets with no possibility of meeting them. The housing crunch has killed off the chance of owning a home for many young people, and left thousands at the mercy of cripplingly expensive rent.  The housing market is broken and we need to build much faster in high growth areas like London and Manchester at the same time investing in restoring low quality housing in our northern towns, in Scotland, Wales and in Northern Ireland. 

In policy terms, we should be asking the Local Government Association, the Infrastructure Commission, and the construction industry itself, to collaborate on a counter-Brexit house building plan with a focus on areas where there is a clear market failure. We could get a champion of industry and construction such as my old Network Rail boss, Sir John Armitt, to be in charge, and lead a national mission to build and rebuild homes.

In the last parliament, Osborne first tried the "tighten our belts" approach to speeding up growth. He failed, and then tried plan B: investment for growth. Now we have the possibility of another recession on the cards and may well need to use investment to stop our economy grinding to a halt. Now - or possibly sooner - would be an excellent time for a national building project like this housing plan.

Stop sneering at "crap towns"

On economic development, it is clear that Labour needs a strategy for giving our northern towns an economic future and linking them up with the modern economy. When cities grow, and towns fall behind, those towns are a breeding ground for frustration. This is not just about cuts, it is about the uneven distribution of the benefits of globalisation. The Brexit vote was centred around areas that justifiably feel they have lost from the last decades. We need to make sure they win from the years ahead.

For far too long, there has been a sneering "crap towns" attitude. These places can offer good housing, community, and a decent life. But the problem there is work. In many of our towns, there is too little to do that can offer a young person a career tomorrow as well as a shift today.

Because, as it happens, the biggest driver of low pay tends to be skill level, not immigration. 

Teach the skills we need

Of course we should stop exploitation of migrant workers who undercut others. Let's tell firms that use exploitative agencies they can't work for the Government. But you can’t raise wages without changing the structure of the labour market. It’s not just about replacing one set of workers with another - you have to raise the level of wages that those workers can command. Because the truth about work in too many places is that most of the jobs available are either those with the low status of care work (though it may be highly-skilled work), or industries with a high volume of low-skilled work such as retail and hospitality. But from there, there’s nothing to move on to. The brain drain to cities has consequences.

Leaving Europe will shut off economic opportunity across the country to many young people.  Frankly, we owe it to them to work like demons to offer them something better closer to home.

We need a social partnership for skills and work. The Confederation of British Industry and the Trades Union Congress working together to deliver an urgent plan for training and career progression in the towns with stagnant labour markets and low skills. We need to find a way to stop the brain drain that sucks the talent out of the places that need it the most, using the experience of programmes like Teach First. When the best people feel they have no reason to return to where they grow up, it is both a sign of a deep problem and also demoralising evidence of decline for those left behind.

And our new metro-mayors must pay as much attention to the towns in their region as well as the city centre. No one left out, no one’s local shops lying empty whilst a city down the road flourishes. And no schools failing, either.

It is undeniable that people voted for change in the referendum. The problem is that the change they voted for will do little to solve the problems they face. Labour’s role is not just to point this out, but to offer a vision of real meaningful change. 

Not easy, perhaps. But one thing is for certain, mouthing platitudes about "hearing concerns"and offering only symbolic gestures has been tested to destruction. People deserve better and we need to offer it to them.

Alison McGovern is the Labour MP for Wirral South

Alison McGovern is Labour MP for Wirral South.