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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The end of loyalty: why are we still surprised when politicians betray each other?

There was Labour’s attempted coup, now the cabinet is in civil war. Have British politicians always been so openly disloyal?

Politicians have always had a reputation for backstabbing, but recently Westminster has been a battleground of back, front and side-stabbing in all parties. The shadow cabinet trying to oust Jeremy Corbyn after the EU referendum; Michael Gove abandoning Boris Johnson to make his own Tory leadership bid; and now Johnson himself derailing Theresa May’s set-piece Brexit speech with his Telegraph essay on the subject – and rumours of a resignation threat.

On the surface, it seems Brexit has given politicians licence to flout cabinet collective responsibility – the convention that binds our ministers to showing a united front on government policy.

The doctrine of cabinet collective responsibility was outlined in the Ministerial Code in the early Nineties, but it became a convention in the late 19th century “the way in which we talk about it still today, in terms of people failing to adhere to it”, says the Institute for Government’s Dr Cath Haddon, an expert in the constitutional issues of Whitehall.

It even goes back earlier than that, when the cabinet would have to bond in the face of a more powerful monarch.

But are we witnessing the end of this convention? It looks like we could be living in a new age of disloyalty. After all, the shadow cabinet was allowed to say what it liked about its leader over nearly two years, and Johnson is still in a job.

An unfaithful history

“I think it’s nothing new,” says Michael Cockerell, who has been making political documentaries and profiles for the BBC since the Seventies. “If you think back in time to Julius Caesar and all the rest of it, this loyalty to the leader is not something that automatically happens or has been normal both in history and modern democracies – there have always been rebels, always been ambitious figures who all work out exactly how far they can go.”

He says the situation with Johnson reminds him of Tony Benn, who was an outspoken cabinet secretary under Harold Wilson and Jim Callaghan in 1974-79. “He knew exactly how far he could push it without being sacked, because of the old thing about having him inside the tent pissing out, rather than outside the tent, pissing in.”

Cockerell believes that Johnson, like past cabinet rebels, knows “how far” he can go in defying May because she’s in a precarious position.

“Often if a prime minister is weak, that’s when the ambitious members of the cabinet can parade their disloyalty while still claiming they’re still being loyal,” he says. “Most people who are disloyal always profess their loyalty.”

The peer and former Lib Dem leader Ming Campbell, who has been in politics since the early Seventies, also believes “it’s always been like this” in terms of disloyalty in British politics.

He gives Wilson’s governments as a past example. “There was a fair amount of disloyalty within the cabinet,” he says. “I remember it being suggested by someone that the cabinet meetings were often very, very quiet because people were so busy writing down things that they could put into print sometime later.”

“Fast-forward to John Major and the ‘bastards’,” he says, recalling the former Conservative prime minister’s battle with trouble-making Eurosceptic cabinet members in 1993.

Dr Haddon adds the examples of Margaret Thatcher being brought down by her cabinet (and tackling the “wets and dries” in her early years as PM), and Tony Blair and Gordon Brown’s teams briefing against each other.

She believes “nothing changes” regarding disloyalty because of the way British government works. “The UK system really provokes this sort of situation,” she says of Johnson. “Because we have empowered secretaries of state, we have a sort of federalist structure, and then we have the prime minister in the position of primus inter pares [first among equals].”

The idea of the prime minister being a fully empowered leader in control of a team is a “modern concept”, according to Dr Haddon. “If you go back into the nineteenth century, ministers were very much heads of their own little fiefdoms. We’ve always had this system that has enabled ministers to effectively have their own take, their own position in their particular roles, and able to speak publicly on their perspective.”

She says the same happens in the shadow cabinet because of the nature of opposition in the UK. Shadow ministers don’t receive tailored funding for their work, and are therefore “often very much reliant upon their own team” to develop policy proposals, “so they become quite autonomous”.

How disloyalty has changed

However, disloyalty plays out differently in modern politics. Campbell points out that with politics developing in real time online and through 24-hour news, there is a far greater journalistic focus on disloyalty. “Previously it would’ve been in the Sunday papers, now you get it 24 hours a day, seven days a week,” he says.

Dr Haddon believes pronouncements of disloyalty are more “overt” than they were because of the way we communicate on social media. Platforms like Twitter discourage the “coded messages” of past disloyal cabinet secretaries, and show infighting more starkly.

“There is this immediacy of reaction,” she says. “And that it’s constrained to 140 characters leads people to ever more brief, succinct declarations of their position. We are also living through a period in which, dare I say, hyperbole and strength of position are only exaggerated by that medium. There’s something in that which is very different.”

And even though British political history is littered with attempted coups, betrayals and outspoken ministers – particularly over Europe – there is a sense that the rulebook has been thrown out recently, perhaps as Brexit has defied the status quo.

Collective responsibility and the idea of the prime minister as primus inter pares are conventions, and conventions can be moulded or dropped completely.

“The constitution is open for discussion now to an extent that I can’t remember,” says Campbell. “You’ve got arguments about independence, constitutional arguments which arise out of Brexit, if we leave. In those circumstances, it’s perhaps not surprising that the constitutional convention about cabinet responsibility comes under strain as well.

“If you’ve got a constitution that depends upon the observance of convention, then of course it’s much easier to depart from these if you choose,” he adds. “And in the present, febrile atmosphere of constitutional change, maybe it’s hardly surprising that what is thought to be a centrepiece is simply being disregarded.”

Anoosh Chakelian is senior writer at the New Statesman.