Why the Times should apologise over NightJack
The emerging questions over the hacking of a blogger's email account.
By David Allen Green Published 22 January 2012 22:02
It is today reported that Tom Watson MP is calling for James Harding, the editor of the Times, to return to the Leveson inquiry to answer questions about the hacking of the email account of NightJack.
But what should the questions be?
Over at Jack of Kent I have started to put together a detailed chronology of the hacking of the NightJack account together with information about other computer hacking. Looking carefully at what can so far be established, there are a number of questions which at least could usefully be posed to the editor of the Times.
It may be that the specific hacking incident is less important than the decisions -- taken by managers and executives -- which followed. After all, the journalist admitted the incident to his managers, and he was disciplined. There is no point making him the scapegoat for this, even though there might be a natural tendency for culpable senior figures to shift the blame downwards.
On the basis of the information so far collected, it would appear to me that three particular managerial or editorial issues need to be addressed.
First, why were NightJack's lawyers and the High Court not informed of the hack? The Times has admitted that it knew of the hack before publication. As the story was eventually published the day after the court handed down judgment, this can only mean that the Times knew while the litigation was live or during the period the paper was waiting for the judge to deliver the judgment.
In either case, it would appear to me that the fact of the computer hacking really should have been disclosed. There can be no doubt that the blogger's lawyers would have sought to rely on it. As it was, the blogger's lawyers were forced to concede that there had been no invasion of privacy or breach of confidentiality.
Second, there does seem to be uncertainty as to who within News International knew about the incident and it seems odd that it was not disclosed to the Department of Culture Media and Sport select committee in November 2011 .
Here dates are important. The hacking incident was disclosed to the Leveson inquiry in those three witness statements dated 14 October 2011. (One of these statements -- from the CEO of News International, Tom Mockridge -- contains a material inaccuracy which was corrected by a further witness statement of 16 December 2011, which refers interestingly to "further enquiries".)
But on 10 November 2011 James Murdoch appeared at the DCMS committee and was asked a number of detailed questions by Tom Watson about computer hacking. It is clear from the answers that Murdoch either was completely unaware of the computer hacking incident (notwithstanding the three witness statements submitted to the Leveson inquiry only the month before) or was being very careful not to tell the committee about it when being directly asked.
Third, it is clear that the Leveson inquiry has so far been told relatively little about the 2009 computer hack. It was only by comparing four witness statements that one could work out any detail about what happened. No mention was made in those statements as to whether the hack had been in relation to a published story, or (perhaps significantly for Leveson) that there had actually been privacy litigation relevant to the story which was published.
Given that following the coverage here, and by David Leigh at the Guardian, the Times volunteered such details in an article published at the end of last week, one wonders why these significant details could not have also been provided to the Leveson inquiry itself.
The Times is a great newspaper, with many excellent columnists and outstanding reporters. But something very wrong happened when NightJack was outed, and this wrong may well have been compounded by subsequent decisions made by senior managers. There could be a perfectly satisfactory explanation as to all what happened, but it would be good to hear it either at the Leveson inquiry, or elsewhere.
And there should be an immediate apology to the blogger whose email was hacked. The Times itself ruled internally that the hack equated to professional misconduct and that it should not have happened. The paper should have promptly informed the blogger and apologised. It is difficult to see any good reason why that was not done.
The Times should now apologise to the blogger without further delay.
David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.
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5 comments
3658585645676
sorry! delete this post please!
Silican
23 January 2012 at 15:21
I agree with your analysis. However, the question Green did not address is what the lawyers knew and when were they informed of this computer hacking. If the lawyers/solicitors knew while proffering their evidence to the Court or became aware before judgment rendered it is their duty to disclose this to the Court or resigned from the case. This is a tenet of law all over the world including the UK. A lawyer/solicitor cannot knowingly proffer evidence they know to be false or
Contain prima facie evidence of criminal activity. Below is an excerpt of the Solicitors Authority Regulations rules:
Rule 11 of the Code of Conduct was amended on 31 March 2009 as part of a general updating of the rules to introduce firm-based regulation and legal disciplinary practices as provided for in the Legal Services Act 2007
Rule
11.01 Deceiving or misleading the court
(1) You must never deceive or knowingly or recklessly mislead the court or knowingly allow the court to be misled.
(2) You must draw to the court's attention:
(a) relevant cases and statutory provisions; and
(b) any material procedural irregularity.
(3) You must not construct facts supporting your client's case or draft any documents relating to any proceedings containing:
o (a) any contention which you do not consider to be properly arguable; or
o (b) any allegation of fraud unless you are instructed to do so and you have material which you reasonably believe establishes, on the face of it, a case of fraud.
Maybe, Mr. Green would like to address this or is he covering up for lawyers/solicitors like himself.
Moreover, this also occurred in the phone hacking part of this scandal and no one including Green asked the pertinent questions concerning what the lawyers/solicitors knew when they knew or told about the hacking. We eventually got the answer in the phone hacking. Mr. Lewis and Mr. Pike eventually admitted they both knew that NI claims that it was a rouge reporter was a lie. We know that the lawyers conspired with each other to lie to Deputy Master Mark, a judicial figure at special court hearing in September 2007 to seal the file of the payment of Taylor (knowing it contained “prima facie evidence of criminal activity”) and mark it confidential. Yet, Deputy Master Mark, a judicial figure, have not seen it urgent to reopen and re-examine the lies proffered by these attorneys and sanction them for lying to him.
It's also worth remembering that at the time, The Times wheeled out quite a few of it's star columnists to defend the publication. Oliver Kamm was a staunch defender of the decision; Danny Finkelstein, their Comment Editor, also made a point to defend the publication and ridiculed their critics.
Given his position as Comment Editor, did he know about the apparently fraudulent means the story was discovered, and subsequently in effect lied about it - or was he kept completely in the dark, or was he told later?
There are important questions for reasons you gave, but it inevitably asks additional questions for the honesty and reputations of the public intellectuals who defended the decision at the time, and did not backtrack later (either because they remained ignorant, or because once they did know, they decided to keep quiet).
As usual, the cover-up is worse than the crime, and it comes down to 'what did they know, and when did they know it.'
The journalist in question and his management staff are not the only ones with questions to answer.
The judge was told that the story was a result of crack investigative journalism when, in fact, it was obtained through a criminal act. This leaves us with the crime of computer hacking compounded by the crime of perjury. An apology seems a rather lame punishment in the circumstances.