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The Times and NightJack: an anatomy of a failure

The story of how, in a string of managerial and legal lapses, the <em>Times</em> hacked NightJack and effectively misled the High Court

The NightJack blog.

(This post sets out what Lord Justice Leveson has since described as a "mastery analysis" at paragraph 1.33 of his Report.)

 

The award-winning “NightJack” blogger was outed in 2009 by the Times of London. At the time the newspaper maintained that its controversial publication of a blogger’s real identity was based on brilliant detective work by a young staff journalist. However, it is now clear that the blogger’s identity was established by unethical and seemingly unlawful hacking of the blogger’s private email account.

If the hack was not bad enough, the Leveson Inquiry has also heard how the newspaper in effect misled the High Court about it when the blogger sought an urgent injunction against his forced identification. The blogger lost that critical privacy case and it is possible that the case could have been decided differently if the Times had disclosed the hack to the court.

The following is a narrative of what happened. It reveals a depressing sequence of failures at the “newspaper of record”. Most of the sources for this post are set out on the resource page at my Jack of Kent blog.

 

Background: the police blogger who won the Orwell Prize

NightJack was an outstanding blog and its author was one of the best the blogging medium had ever produced. The blog was an unflinchingly personal account of front-line police work set in the fictional -- and generic -- urban environments of “Smallville” and “Bigtown”. The world it described was very different from the glamorous police shows on television. Readers who otherwise would not know what police really did and what they had to put up with could now gain a proper understanding of the modern police officer’s lot.  The blog’s narrator -- “Jack Night” -- could have been any police officer working under pressure in any town or city. 

NightJack was a perfect example of the value of blogging, providing a means -- otherwise unavailable -- by which an individual could inform and explain in the public interest.

After he was outed, the author explained how the blog was started and how NightJack gained a good following:

It all began around December 2007 when I began to read blogs for the first time. I read blogs by police officers from all over the UK. They were writing about the frustrations and the pleasures of what we all refer to as “The Job”. As I read, I began to leave comments until some of those comments were as long as the original posts. Reading and responding made me start to consider my personal feelings about “The Job”. So it was that in February 2008, I made a decision to start blogging for myself as NightJack. That decision has had consequences far beyond anything that I then imagined possible.

My head-on accounts of investigating serious crime and posts on how I believed policing should work within society seemed to strike a chord and my readership slowly grew to around 1,500 a day.

And then, a year after the blog started, something happened that made NightJack one of the best-known blogs in Britain.

 

February to April 2009: NightJack and the Orwell Prize

In February 2009, the blogger learned that his work had gained formal recognition:

[U]nexpectedly, in February 2009 I was longlisted for the Orwell Prize.

In March 2009 NightJack made it on to the shortlist.

I realised that what had begun as a set of personal ruminations was achieving a life of its own. I cannot deny that I was happy with the recognition, but at the same time I had the feeling that the Orwell Prize was a big, serious, very public event. Win, lose or draw, my blog was about to move out of the relatively small world of the police blogosphere and get a dose of national attention.

On 22 April 2009 NightJack became the first winner in the new blog category of the Orwell Prize, regarded as the leading prize for political writing in the United Kingdom. The judges were clearly impressed; they said of NightJack:

Getting to grips with what makes an effective blog was intriguing -- at their best, they offer a new place for politics and political conversation to happen.

The insight into the everyday life of the police that Jack Night’s wonderful blog offered was -- everybody felt -- something which only a blog could deliver, and he delivered it brilliantly.

It took you to the heart of what a policeman has to do -- by the first blogpost you were hooked, and could not wait to click on to the next one.

However, the winning blogger was keen to maintain his carefully protected anonymity. He arranged for the prize to be collected by a friend and for the £3,000 to be donated to a police charity. He later wrote of the attendant media interest:

The morning after I won the award, there was a leader in the Guardian and a full page in the Sun. The readership went up to 60,000 a day (more people have read NightJack since I stopped writing it than ever read it whilst it was live). My email inbox had offers from newspapers, literary agents, publishers and people who wanted to talk about film rights and TV adaptations.

There was a lot of attention heading towards my blog and I was nervous that somehow, despite my efforts to remain unknown, my identity would come out. As an anonymous blogger, I was just another policing Everyman but if it came out that I worked in Lancashire, I knew that some of my writing on government policy, partner agencies, the underclass and criminal justice would be embarrassing for the Constabulary. Also, as an anonymous police blogger I was shielded from any consequences of my actions, but without the protection of that anonymity there were clearly areas where I would have to answer for breaches in the expected standards of behaviour for police officers.

During the next month I began to relax a little. It felt like everything was going to work out and my identity would stay secret. I contacted one of the literary agents and said that the blog was not for sale at any price and that I wouldn’t be trading on the Orwell Prize.

There was press and TV attention but nobody seemed to want to publicise who was behind my blog.

 

17 to 27 May 2009 – the hacking of an email account

Unfortunately, this happy situation would last for only a month. A staff journalist at the Times called Patrick Foster had become interested in NightJack. Foster covered the media rather than crime, but he was intrigued by this anonymous police blog that had won the Orwell Prize.

As Foster later said:

In the first instance, this was down to the natural journalistic instinct of trying to unmask someone who tries to keep their identity secret.

But Foster was not to use conventional journalistic methods to unmask the blogger. On or about Sunday 17 May 2009, Foster decided to hack into the NightJack author’s Hotmail account. He did this, it would seem, by “forgetting” the password and guessing the answer to the subsequent security question.  The Times did not sanction or commission the hack.

From the details available in the email account, Foster was apparently able to identify the author of the blog, as well as obtain the blogger’s private mobile phone number and see correspondence between the blogger and a literary agent.

This hacking exercise was undertaken on Foster’s own initiative and was similar to an exercise he had undertaken as a student journalist at Oxford. (The police originally treated this earlier hack as a potential breach of the Computer Misuse Act 1990 and referred it to the university authorities.)

Thus, Foster was not a stranger to email hacking or to the applicable legislation, which does not have any public-interest defence. 

On Tuesday 19 May 2009, Foster contacted his line manager, Martin Barrow, the Times’s home news editor, about his discovery. First, Foster emailed Barrow:

“Martin, sorry to bother you. Do you have five minutes to have a quick chat about a story -- away from the desk, down here in the glass box, perhaps?”

It appears Barrow then immediately referred Foster to Alastair Brett, the long-serving Times legal manager.

 

20 May 2009 – Foster and Brett have a meeting

Foster emailed Brett the next day:

“Hi Alastair, sorry to bother you. Do you have five minutes today? I need to run something past you.”

They then had what proved to be a significant meeting. Two years later, Brett recalled the meeting for the Leveson Inquiry:

I remember Patrick Foster coming to see me on or about 20 May 2009 about a story he was working on. He came into my office with Martin Barrow, the home news editor, who was his immediate line manager. Mr Barrow indicated that Mr Foster had a problem about a story he was working on. From my best recollection, Mr Barrow left shortly after that and Mr Foster and I were left alone. Mr Foster then asked if we could talk “off the record”, ie, confidentially, as he wanted to pick my brains on something and needed legal advice. I agreed.

He then told me that he had found out that the award-winning police blogger, known as NightJack, was in fact Richard Horton, a detective constable in the Lancashire Police, and that he had been using confidential police information on his biog. As his activities were prima facie a breach of police regulations, Mr Foster felt there was a strong public interest in exposing the police officer and publishing his identity.

When I asked how he had identified DC Horton, Mr Foster told me that he had managed to gain access to NighJack’s email account and as a result, he had learnt that the account was registered to an officer in the Lancashire Police, a DC Richard Horton. This immediately raised serious alarm bells with me and I told him that what he had done was totally unacceptable.

At that first meeting, Mr Foster wanted to know if he had broken the law and if there was a public -interest defence on which he could rely.

I had already done some work with Antony White, QC on the discrepancies between Section 32 and Section 55 of the Data Protection Act 1998 (DPA) and the government’s intention of bringing in prison sentences for breaches of S55 of the DPA. I knew there was a public-interest defence under Section 55 of the DPA. I told Mr Foster that he might have a public-interest defence under the section but I was unsure what other statutory provisions he might have breached by accessing someone’s computer as I did not think it was a Ripa (Regulation of Investigatory Powers Act) situation.

I said I would have to ring counsel to check there was a public-interest defence and what other statutory offences Mr Foster might have committed.

I cannot now remember if I phoned One Brick Court, libel chambers, while Mr Foster was in my office or shortly thereafter but I do know I spoke to junior counsel around this time and he confirmed that S55 of the DPA had a public-interest defence and it might be available. He did not mention anything about Section 1 of the Computer Misuse Act 1990 during that conversation or point me in that direction.

I do remember being furious with Mr Foster.

I told him he had put TNL and me into an incredibly difficult position. I said I would have to give careful consideration to whether or not I reported the matter to David Chappell, the managing editor of the newspaper and the person on the newspaper who was responsible for issuing formal warnings to journalists and could ultimately hire or fire them.

As Mr Barrow, the home news editor, had brought Mr Foster up to see me, I assumed that he was also fully aware of Mr Foster having accessed NightJack’s email account and that he, as Mr Foster’s immediate line manager, would take whatever disciplinary action he thought appropriate about a journalist in his newsroom.

I also remember making it clear that the story was unpublishable from a legal perspective, if it was based on unlawfully obtained information. It was therefore “dead in the water” unless the same information -- NightJack’s identity -- could be obtained through information in the public domain.

I told him he had been incredibly stupid. He apologised, promised not to do it again but did stress how he believed the story was in the public interest and how important it was to stop DC Horton using police information on his blog.

He said he thought he could identify NightJack using publicly available sources of information. I told him that even if he could identify NightJack through totally legitimate means, he would still have to put the allegation to DC Horton before publication. This process is called “fronting up”, and is an essential element of the Reynolds qualified privilege defence in libel actions.

However, at the time, Foster took a far more encouraging view of events. Foster emailed Barrow straight after the meeting:

Alastair [Brett] on side. 

Foster then told Barrow:

Am trying to take it out of paper this Saturday for three reasons: (1) am away this Friday, (2) want a little more time to put ducks in a row and pix [photographs], (3) want little more space between the dirty deed and publishing.

The “dirty deed” was presumably the unauthorised hacking of the victim’s email account, to which he had just admitted to the Times legal manager.

27 May 2009 – the blogger takes legal action

On the morning of Wednesday 27 May 2009, a week after the meeting between Foster and Brett, Detective Constable Richard Horton of the Lancashire Constabulary was told by colleagues that the Times picture desk had been in contact asking for photographs. Then at around lunchtime, Horton received a call on his private mobile telephone number.

The caller was Foster.

Horton later wrote:

Then one morning I heard a rumour that the Times had sent a photographer to my home. Later in the afternoon came the inevitable phone calls from the Times, first to me and then to Lancashire Constabulary, asking for confirmation that I was the author of the NightJack blog.

That was easily the worst afternoon of my life.

As Horton’s lawyer later told the High Court:

[Horton] was approached by a journalist, Mr Pat Foster, claiming to be from the Times newspaper. Mr Foster told [Horton] that he had identified him as the author of the blog and was proposing to publish his identity as author of the blog together with a photograph of him in the next day’s edition of newspaper.

[Horton] has no idea how Mr Foster identified him as the author of the blog.

Foster later described the same call in a witness statement for the High Court:

On May 27 I contacted Richard Horton by phone and put it to him that he was the author of the blog.

He seemed agitated and would not confirm or deny the allegation.

In the course of the conversation he admitted that he had had contact with journalists about the blog. He said he was writing a book, but said it could be coincidence that the author of the blog had also written on the blog that they were writing a book.

At the end of the conversation I was certain that he was the author of the blog.

Horton was indeed the author of the NightJack blog, as Foster knew before he made the call. However, Horton was not going to simply accept his imminent “outing”.  He contacted the Orwell Prize administrators about Foster’s call and they referred him to Dan Tench, an experienced media litigator at a City law firm.

Tench promptly faxed the Times to warn in general terms that the publication of Horton as the blogger would be a breach of confidence and a wrongful disclosure of personal information.

Horton’s legal challenge took Brett by surprise and it placed the Times in a difficult position. Brett had not thought the outing of Horton would lead to litigation. However, Tench was now demanding an undertaking that the Times would not publish the identity of Horton without giving 12 hours’ notice. The Times agreed. This meant Tench and Horton would now have to be told well before any publication, allowing them an opportunity to obtain an injunction to prevent publication.

Accordingly, the newspaper did not out the blogger the next day as it had intended.

So what public domain information did the Times have on 28 May, the intended publication date, which connected Horton with NightJack?

It is difficult to be certain, as there is little direct evidence of any investigation taking place before 27 May 2009 though there had clearly been analysis of some of the posts.   And, in his call to Horton, Foster seemed to mention the literary agent only as supporting evidence.  This detail was presumably taken from the email account, as was the number he dialled.

The newspaper  appears to have had little more than the information Foster had been able to elicit from the Hotmail account or deduce from comparing some news reports with statements on the blog.

 

28 May 2009 – Horton applies for an injunction

The morning after Foster’s call to Horton, Brett emailed Tench, giving the required “notice that the Times would be publishing a piece in tomorrow’s paper about your client being the Night Jack”.

Tench replied at lunchtime to confirm that Horton would be seeking a temporary injunction at the High Court.

An injunction hearing was hurriedly arranged for 4pm the same day before Mr Justice Teare. This was to be the first of two High Court hearings for this case.

At the initial hearing, Horton’s legal team set out for the High Court the many detailed steps taken by Horton to protect his anonymity. Because of these steps, Horton’s lawyers contended that any identification by Foster could only have been in breach of confidentiality or an invasion of privacy.

At the hearing of the application for the injunction, the barrister for the Times (who had not been made aware of the hack) was instructed to say that the identity had been worked out “largely” by detective work:

My instructions, having discussed [the confidentiality] argument in particular with my instructing solicitors and the journalist, who is here, are that the proposed coverage that will be given, which will involve the disclosure of this individual’s identity, is derive …from a self-starting journalistic endeavour upon the granting of the Orwell Prize.

It is a largely deductive exercise, in the sense that the blogs have been examined and contemporary newspaper reports have been examined.

This first hearing was a relative success for Horton and his lawyers. It was adjourned to allow the Times to put in a skeleton argument and witness evidence at a resumed hearing the following week. In the meantime, the Times undertook not to publish its story.

 

29 to 31 May 2009 – the Times finds a “golden bullet”

After the first hearing, there was frantic activity at the Times to establish that Horton’s identity could somehow be established by entirely public means.  Unless this was possible, it was likely that the Times would lose at the resumed hearing.

It was at this point, it seems, that Brett realised the Times did not actually have a copy of NightJack’s entire blog. Horton had taken the blog down after the call from Foster, and it appeared neither Foster nor Brett had thought ahead to retain a copy before that call was made. So, on Friday 29 May 2009, the day after the initial hearing, Brett asked Tench for a full copy of the NightJack blog:

It is important we see a full copy of the blog in order to make a detailed analysis before the hearing next week.

Why was Brett requesting the blog at this stage? The implication is that the Times had yet to make a detailed analysis of the blog’s content.  The Times was looking for any information which would allow it to show that Horton could be identified by information in the public domain.

On Saturday 30 May 2009 there was a breakthrough. An excited Foster emailed Brett:

Alastair, I cracked it. I can do the whole lot from purely publicly accessible information.

Brett is delighted, and he replied the same day:

Brilliant -- that may be the golden bullet. Can you set it out on paper?

This “golden bullet” -- discovered some ten days after Foster had first raised the case with Brett, and two days after the first High Court hearing and the original intended publication date -- consisted of comments left by Horton on his US-based brother’s Facebook page. To obtain this crucial information, Foster had had to sign into Facebook as a member of the Houston Texas network, but he now had the final detail for the “fronting-up” exercise.

This fortuitous discovery was made on 30 May 2009. But, of course, though the Times had originally intended to run the story on 28 May, two days before it obtained its “golden bullet”.

 

Monday 1 June 2009 – Dan Tench writes an important letter

By that same weekend, Tench was highly suspicious about the real source of the original identification by Foster. So, on Monday 1 June 2009, he wrote a detailed and substantial letter to Brett expressing concern that there had been unlawful interference with Horton’s email account.

Tench set out a number of circumstances that gave rise to the strong likelihood that Foster had identified Horton by means of an email hack. He referred to the comment of the Times’s barrister at the first hearing the previous week, that the blogger had been identified only “largely” by a process of deduction. 

The password incident of 17 May 2009 was now mentioned, and cuttings were included of Foster’s previous hacking activity as a student at Oxford University. (Those cuttings happened to mention the offence under the Computer Misuse Act 1990, the existence of which was news to Brett.)

Tench asked Brett directly to what extent Horton had been identified through a process of deduction. He also asked how Foster could have gained details of Horton’s home address, private phone number and literary agent.

Tench even requested express confirmation from Brett that Foster did not at any time make any unauthorised access to any email owned by Horton. As he stated bluntly to Brett:

It would be an extremely serious matter if Mr Foster had made an unauthorised access into any email account.

 

Tuesday 2 June 2009 – the misleading letter and witness statement

But Brett now had his “golden bullet”. When he replied to Tench on Tuesday 2 June 2009, Brett started by complaining about Tench not providing full disclosure of the requested NightJack blog:

I think it would be fair to describe your client’s refusal to produce the full copy of the blog in this case as incompatible with that duty to reveal all material that is reasonably necessary and likely to assist the Times’s case and defence at the forthcoming hearing.

Brett then proceeded to deal with Tench’s contentions about the likelihood of email-hacking:

I am still working on Patrick Foster’s witness statement but apart from inserting all page numbers which is being done while I write this letter his witness statement is now almost ready to be served.

I therefore attach a copy of it as it sets out through a process of elimination and intelligent deduction your client’s identity can be worked out [sic].

It is important that you read his witness statement as there cannot be any reason for your continuing to withhold the full blog from us when you have seen that process of deduction set out in the witness statement.

As regards the suggestion that Mr Foster might have accessed your client’s email address because he has a “history of making unauthorised access into email accounts”, I regard this as a baseless allegation with the sole purpose of prejudicing Times Newspapers’s defence of this action . . .

[. . .]

As regards his deductive abilities, please see [Foster’s] witness statement.

Brett’s explanation of how identification was obtained and his apparent assurance that the allegation of hacking was “baseless” were at best misleading.  Brett himself has put it since that he was being “oblique to an extent which [was] embarrassing”.

Yet it was the witness statement that presented as fact that the identification of Horton had been made entirely through accessing material in the public domain.
 
The witness statement, in Foster’s name, was prepared by Brett. (There is nothing unusual in this. Witness statements are often drafted by lawyers, as long as the witness is then fully content with the statement when he or she signs it. In this case, the witness statement would not have been given to Foster to sign until Brett was satisfied with it.)
 
So the witness statement provided a compelling account of excellent detection, describing how Foster, working from scratch, had gone painstakingly through a range of information in the public domain to work out Horton’s identity as the author of NightJack.  As Lord Justice Leveson later described, it looked a beautiful forensic exercise.  But it was false.
 
The witness statement also included various flourishes that make one think that a clever and elaborate investigation had been carried out step by step. Examples of such details included:
I resolved to try to uncover the identity of its author . . .
 
I began to systematically run the details of the articles through Factiva, a database of newspaper articles . . .
 
Because of the startling similarities between the blog post and the case detailed in the newspaper report, I began to work under the assumption that if the author was, as claimed, a detective . . .
 
I tried to link personal details about the author that are revealed on the blog with real-life events . . .
 
I began to examine the posts on the blog in chronological order to try and find personal information about the author . . .
 
Having undertaken this process, it was clear that the author of the blog was DC Richard Horton . . .
At the Leveson Inquiry, Brett said that he was only being careful not to allow Foster to be incriminated. This is an admirable sentiment. However, that could have been achieved by other means. For example, the witness statement could have shown how it was possible for the identity of the blogger to be established by materials in the public domain without positively asserting that that was how it had actually been done.

Towards the end of the witness statement, almost as if it was an afterthought, Foster then set out the comments on Horton’s brother’s Facebook page as mere “further confirmation” of the identification, rather than the “golden bullet” of his email exchange with Brett. Foster then signed his witness statement and everything was set for the resumed High Court hearing.

 

4 June 2009 – How the High Court was misled

 
The injunction hearing resumed on Thursday 4 June 2009. This time, the judge was Mr Justice Eady, a specialist in media.
 
By this second hearing, however, Horton’s application was not as strong as it had been at the initial hearing. Because Brett said that the allegation of hacking was essentially “baseless” and because of the story set out in Foster’s witness statement, Horton’s lawyers reluctantly had to drop their contention that the blogger’s identity could only have been established by breach of confidentiality or through an invasion of privacy.
 
Brett was careful not to tell the barristers acting for the Times about the email hack. One (perhaps unintended) consequence of this was that the barristers could not help but effectively mislead the court through no fault of their own. The hearing thereby proceeded on the incorrect basis that Horton had been identified entirely by the detective work set out in the witness statement.
 
So, as Eady later described in the judgment:
On 4 June 2009 I heard an application in private whereby the claimant, who is the author of a blog known as “Night Jack”, sought an interim injunction to restrain Times Newspapers Ltd from publishing any information that would or might lead to his identification as the person responsible for that blog. An undertaking had been given on 28 May 2009 that such information would not be published pending the outcome. I indicated at the conclusion that I would refuse the injunction but, in the meantime, I granted temporary cover to restrain publication until the handing down of the judgment, when the matter could be considered afresh if need be. 
The following passage from the judgment was critical:
It was asserted in the claimant’s skeleton [argument] 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 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.
Given this concession, Eady summed up the predicament of Horton’s legal claim:
[Horton’s barrister] needs to demonstrate that there would be a legally enforceable right to maintain anonymity, in the absence of a genuine breach of confidence, by suppressing the fruits of detective work such as that carried out by Mr Foster.
Eady is evidently much taken by the “fruits” of Foster’s apparent detective work. Hugh Tomlinson, Horton’s QC, tried to contend that there was still a public interest in protecting sources from exposure by the national press, even if their identity could be worked out by other means. But to no avail.
 
At the end of the hearing Eady said he would not grant the injunction. Horton had lost. But, perhaps significantly for what follows next, the judge reserved judgment and was careful to keep cover in place until his decision could be handed down, “as the matter could [then] be considered afresh if need be”. In other words, if any matter did emerge before judgment was made public, Eady could take those matters into consideration before the judgment was handed down.
 
 

5-17 June 2009 – What the editor of the Times knew, and then what he does and does not do

 
So, what did James Harding, the editor of the Times, know about any of this, and when? According to his later witness statement to the Leveson Inquiry, Harding came to know of the potential identification of the NightJack blogger on 27 May 2009, the day before the originally intended publication date. He also knew of the possible injunction application the same day, though he was not told of the hack.
 
Harding was copied in to an email from Brett to the managing editor, David Chappell, on 4 June, the date of the second hearing. This was an important message stating that Foster had gained unauthorised access. Harding did not read the email at the time, even though it contained information about a serious and apparently criminal incident of hacking by one of his staff reporters. The email said:

David, you asked me to do you a memo on NightJack and events to date.

I first saw Patrick Foster on or about 19 May when he told me he’d been able to identify real live cases that an anonymous police blogger had been writing about.

Patrick felt this was seriously off side and probably a breach of the officer’s duty of confidence to the force. He therefore wanted to identify the guy and publish his name in the public interest. He then said he had gained access to the blogger’s email account and got his name.

This raised immediate alarm bells with me but I was unaware of the most recent law governing email accounts.

After this conversation, I told Patrick: “Never ever think of doing what you have done again.” I said he might just have a public interest defence if anyone ever found out how stupid he’d been. He apologised and promised not to do it again. Further, he said he would set about establishing Horton’s identity without reference to the email account. I did though say he would have to put it to Richard Horton that he was NightJack.

Last Thursday afternoon, our barrister told the court that through a process of deduction and elimination, Patrick could identify Horton as NightJack, but it looked as though we would lose the application because Horton’s silk was convincing the judge that he was entitled to have the information protected by the law of privacy and confidence.

On Monday of this week, Olswang wrote to us saying: (a) that Patrick had a history of accessing email accounts and pointing us to an incident at Oxford where he’d been temporarily rusticated for accessing someone else’s email account without authority, and (b) that their client’s email had been hacked into.

Looking at the old Oxford cuttings about Patrick’s brush with the proctors, I became aware of the possibility that Patrick’s access to Horton’s email account could constitute a breach of Section 1 of the Computer Misuse Act.

Patrick has always believed that his investigation of NightJack was in the public interest. When he came to me to say that he had found out that NightJack was Richard Horton and he had also obtained access to his email account, I made it very clear that this was disastrous, as he should not have done it.

Given my own failure to spot what could be a breach of Section 1 of the Computer Misuse Act, I am not in a position to advise sensibly in this case, but I would suggest that Patrick is given a formal warning that if he ever accesses anyone’s computer ever again without authority, whether it’s in the public interest or not, he will be sacked. You might add that the only reason he has not been sacked now is because he was told he might have a public interest defence if he was pursued under the [Data Protection Act].

This email clearly stated that there had been a hack, and that the hack was how Foster had got Horton’s name. The email also revealed that Brett had realised from the cuttings sent by Horton’s lawyers that such a hack could constitute a possible breach of the Computer Misuse Act 1990.
 
Harding has since explained that the point at which he became aware of the hack was the day after this email, when it was raised in a meeting with Chappell. In his written evidence to the Leveson Inquiry, Harding stated:
At that time, it was not clear to Mr Chappell or to me exactly what Mr Foster had done, but the suggestion that he had accessed someone’s email account was a matter of great concern to both of us.
One would think Brett’s email of 4 June 2009 was quite clear about what Foster had done and its legal importance, in particular two points regarding exactly what Foster had done and its legal significance could not have been made clearer by Brett:
 [Foster] had said he had gained access to the blogger’s email account and got his name . . .
. . . failure to spot what could be a breach of section 1 of the Computer Misuse Act . . .
Some might ask why, when he became clear about the hacking, Harding did not try, as would seem to have happened, to find out more about the implications of it or what the High Court had or not had been told about it. However, Harding has said that he did not know at this point that the High Court had not been told about the hacking and that he would have left decisions about what to put to the court to Brett.
 
On 12 June 2009, Mr Justice Eady’s judgment was made available in draft. Eady held that there could be no injunction because blogging is a public activity and Horton had no legitimate expectation of privacy in respect of information that was in the public domain. There was therefore no need to balance the public interest of disclosure against that of privacy.
 
However, Eady also stated that even if Horton had a legitimate expectation of privacy, the public interest in disclosure of his identity would outweigh any right to privacy; but this second point was made without the court having had the benefit of hearing any argument or seeing any evidence on the email hack. It is therefore entirely possible that, had the hack been put before the court, the decision could have gone the other way.
 
For some reason, Harding did not read the draft judgment. But two days after the draft was provided, there was a further important email, this time from Chappell to the then deputy editor, about the impending editorial decision whether to now publish Horton’s identity:
There are three things to consider:
(1) What is the editorial value of this story?
(2) Given there is a significant legal precedent in this, we’ll want to run something. Given the trouble it’s caused, are we now cutting off our own nose to spite our faces if we decide the story isn’t that interesting? Are we now stuck in a position of having to run something because of the legal processes?
(3) What do we do about Patrick?
Chappell then asked two questions showing that at least he, as the managing editor (if not Harding), was aware of the significance of Foster’s hack:
If we publish a piece by Patrick saying how he pieced together the identity (for which Eady praises him!) what happens if subsequently it is shown that he had accessed the files?
What are the ramifications for him, you and the editor -- does our decision to publish, knowing that there had been a misdemeanour, indicate complicity and therefore real embarrassment or does Eady’s judgment get us off the hook?
There followed a meeting on 15 June 2009 between Chappell, Harding and the then deputy editor. In the words of Harding’s later witness statement:
Discussion at that meeting focussed on whether publishing a story identifying Night Jack was in the public interest. We debated the arguments for and against.
We also discussed whether in effect we had little option but to publish because the Times had pursued High Court action and the injunction had been lifted. In these circumstances, I decided to publish.

Harding amplified this in oral evidence to the Leveson Inquiry:

We had a meeting, as I remember, to discuss this issue. The first and biggest one was: what was the public interest argument?

And of course, what was very frustrating was that’s exactly the conversation we should have had in advance of going to the High Court.

We had it after the fact and after the fact that Mr Eady’s judgment was being handed down, but it was an important argument that we had to address, because on the one hand, some people said, “Why are we trying to identify someone who is essentially a citizen journalist who is an anonymous blogger? Surely, if you like, he’s one of us?”

And on the other side there was a question which was: here is a police officer who appears to be in breach of his police duties and also there is a real question about this kind of commentary made anonymously on the internet -- the whole issue of anonymity on the web. And, having listened to that debate, I took the view that this was -- and [I] still believe that this was -- firmly in the public interest. This was what dominated that conversation.

The second issue was: what do we do about the fact that this case has been taken without our knowledge to the High Court? What do we do if we’ve taken up the time of the High Court? Mr Justice Eady has ruled that this is in the public interest; we are thereby enabling everyone to publish the identity of NightJack. But more importantly, will the Times not then get known for bringing vexatious lawsuits to the High Court if we don’t honour that judgment?

Third, there was a question which was: the reporting had already led to Mr Horton’s identification within the Lancashire Constabulary, and fourth, we believed we had a behavioural problem with one of our reporters. We were going to have to address that.

The way it had been presented to me -- and that’s obviously different with hindsight -- but the way it had been presented to me was there was a concern about Mr Foster’s behaviour but that he had identified him through entirely legitimate means. On that basis, and in the light of all of those four things, I took the decision to publish.

However, as Harding later admitted:

I can now see that we gave insufficient consideration to the fact of the unauthorised email access in deciding whether or not to publish.

This “insufficient consideration” was notwithstanding the separate emails of Brett and Chappell, both emphasising the significance of the hack. Interestingly, at the same meeting on 15 June 2009, Harding instructed that disciplinary proceedings be launched against Foster for a “highly intrusive act”. So it would appear that Harding somehow regarded the hack as being very serious as an employment issue, but somehow not of particular weight as an editorial issue.

Nonetheless, Harding later insisted at the Leveson Inquiry:

If -- if it had been the case that Mr Foster had brought this to me and said, “I’d like to get access to Mr Horton’s email account for the purposes of this story,” I would have said no.

If Mr Brett had come to me and said, "Mr Foster has done this; can he continue to pursue the story?”, I would have said no.

If Mr Brett had come to me and said, “Do you think we should go to the High Court, given the circumstances of this story?”, I would have said no.

However, in my opinion, there was no good reason why Harding could have not said “no” at the editorial meeting of 15 June 2009 in light of the emails of Brett and Chappell, both emphasising the significance of the hack.

Eady’s judgment was formally handed down the following day and the Times website exposed Richard Horton to the world as the author of NightJack. The story was also published in the print edition of 17 June 2009.

It was one month to the day from when Horton’s email account had probably been hacked.

 

19 June 2009 to October 2011 -- the immediate aftermath

The outing of Richard Horton was controversial. To many observers, it seemed a needless and spiteful exercise by a mainstream media publication. The public interest arguments appeared hollow: no one else had been able to match information in the generic posts with any real-life cases. The supposed “advice” of the blog to those arrested was playfully ironic rather than subversive of policing. There just seemed no good purpose for the outing, and the public benefit of an outstanding and informative police blog had been pointlessly thrown away.

Even other journalists were unimpressed. As Paul Waugh of the London Evening Standard wrote at the time:

In NightJack’s case, I still cannot believe that the Times decided to embark on a disgraceful and pointless campaign to out him. Having found some clues about him, the paper inexplicably decided that this was some great issue of media freedom. The Times’s legal team then refused to back down rather than lose face.

The damage that the Times inflicted was far worse than just threatening one honest copper with the loss of his career. It undermined any policeman who wanted to speak off the record, the lifeblood of decent crime reporting. It also undermined any whistleblowing blogger, any public servant who wanted to tell it as it is from the front line, without the filter of a dreaded “media and communications office”. Maybe one day the Times will apologise, but knowing newspaper office politics as I do, I suspect it never will.

To which the Times columnist and leader writer Oliver Kamm replied, unaware of the true circumstances of what had happened:

I’m stupefied at the way Waugh has depicted this. Be aware that when he says, “The Times’s legal team refused to back down,” what he means is that the Times decided to defend itself against a legal attempt to muzzle it. Its reporter had discovered the identity of the police blogger (Richard Horton), through public sources and not by subterfuge or any invasion of privacy. Horton sought to protect his anonymity, and in my opinion he had no plausible grounds for doing so other than his own convenience.

If the Times had pried into Horton’s family life (of which I have no knowledge whatever), then that would have been wrong. But it didn’t. Horton wrote his blog, expressing partial political opinions, using information gained from his employment as a public servant. I once worked in public service (at the Bank of England), and I consider there is an ethos of confidentiality and political neutrality that you do not breach. Of course it was in the public interest to disclose Horton’s identity when he left clues to it. I’m surprised that Waugh retails uncritically the complaint of the freemasonry of bloggers, who assume that the constraints that we journalists observe ought not to apply to them.

Kamm added in another post:

A Great Historical Question to Which the Answer is No (“Was NightJack hacked into too?”)

[. . .]

[A]s Mr Justice Eady remarked in court, Foster uncovered Horton’s identity “by a process of deduction and detective work, mainly using information on the internet”.

We’re journalists: we do this sort of thing. 

The Times had not only hoodwinked Mr Justice Eady; it had now hoodwinked one of its own leader writers.

The Waugh/Kamm exchange illustrates essentially the state in which the story of NightJack’s outing remained for over two years: lingering concerns and confident counter-assurances, depending on whether one thought the Times had done a good thing or not. 

In the immediate aftermath, Horton underwent disciplinary proceedings and received a written warning from Lancashire Police. He did not return to blogging. Foster also received a written warning for the hack.

Brett eventually left the Times in July 2010 and Foster left in May 2011, both in circumstances unrelated to the NightJack incident.
 
The outing of NightJack slowly receded in time.
 
And then the Leveson Inquiry was established in the summer of 2011.

 

October to December 2011 – the Leveson questionnaire

The team at the Leveson Inquiry sent out questionnaires to various senior figures in the mainstream media. Three of those asked to provide witness statements in response to these questionnaires were Harding, Simon Toms (recently appointed interim director of legal affairs at News International) and Tom Mockridge (Rebekah Wade’s replacement as chief executive officer of News International). Neither Toms nor Mockridge was in post in 2009, and so neither could know any more about the hack than what he was told for the purposes of replying to the Inquiry’s questionnaire.

One question asked related to computer hacking.  Because of the disciplinary proceedings against Foster, the NightJack hack could not be denied or ignored, and so somehow it had to be mentioned. Yet the witness statements -- all signed on 14 October 2011 -- seemed to play down the incident.

Toms:

Question Explain whether you, or the Times, the Sunday Times, the Sun or the News of the World (to the best of your knowledge) ever used or commissioned anyone who used “computer hacking” in order to source stories, or for any reason.

Answer I am not aware that any NI title has ever used or commissioned anyone who used “computer hacking” in order to source stories. I have been made aware of one instance on the Times in 2009 which I understand may have involved a journalist attempting to access information in this way. However, I also understand that this was an act of the journalist and was not authorised by TNL. As such, I understand it resulted in the journalist concerned being disciplined.

Harding:

The Times has never used or commissioned anyone who used computer hacking to source stories. There was an incident where the newsroom was concerned that a reporter had gained unauthorised access to an email account. When it was brought to my attention, the journalist faced disciplinary action. The reporter believed he was seeking to gain information in the public interest but we took the view he had fallen short of what was expected of a Times journalist. He was issued with a formal written warning for professional misconduct. 

Mockridge:

Neither I nor, to the best of my knowledge, the Sunday Times or the Sun has ever used or commissioned anyone who used “computer hacking” in order to source stories or for any other reason. In relation to the Times, I am aware of an incident in 2009 where there was a suspicion that a reporter on the Times might have gained unauthorised access to a computer, although the reporter in question denied it. I understand that that person was given a formal written warning as a result and that they were subsequently dismissed following an unrelated incident.

Mockridge had initially been given incorrect information about the hack and this was corrected by his second witness statement of December 2011:

At paragraph 20.2 of my first witness statement I referred to a reporter at the Times who might have gained unauthorised access to a computer in 2009. At the date of my first witness statement, it was my understanding that the reporter in question had denied gaining such access. Following further enquiries, I now understand that the reporter in fact admitted the conduct during disciplinary proceedings, although he claimed that he was acting in the public interest. The journalist was disciplined as a result; he was later dismissed from the business for an unrelated matter.

These four statements were not immediately revealing. For example, from these statements alone, one would not know that the incident even related to a published story, let alone one where there had been related privacy litigation. Perhaps the hope was that no one would notice or investigate further.

 

January 2012 – How the story began to emerge

The four Leveson witness statements were published on the Leveson website on or after 10 January 2012 -- first the one by Toms, and then the others. The only mention in the media seemed to be a short report in the Press Gazette of 10 January 2012 that a Times journalist had been disciplined for computer hacking.

I happened to see the Press Gazette story and because of the 2009 date of the incident, I immediately suspected it was about NightJack. I had blogged about the outing at the time and had long been concerned that the “dark arts” had somehow been engaged. When the other three witness statements were published, I pieced together what they did say over 16-17 January 2012 on the Jack of Kent blog.

In essence, one could deduce from the witness statements the following apparent facts:

  • the incident was in 2009;
  • the reporter was male (“he”);
  • the computer-hacking was in the form of unauthorised access to an email account;
  • a disciplinary process was commenced after concerns from the newsroom (not entirely correct, as it turned out);
  • the reporter admitted the unauthorised access during the disciplinary process (also not correct, as it was admitted before publication, let alone the disciplinary process);
  • the incident was held to be “professional misconduct” and the reporter was disciplined;

and

  • the reporter was no longer with the business, having been dismissed on an unrelated matter.

On 17 January 2012, Harding gave evidence to Leveson Inquiry, but he was not asked about the computer-hacking incident referred to in his witness statement.

Meanwhile both Paul Waugh and I connected the incident with NightJack, and late on 17 January 2012 David Leigh at the Guardian confirmed that a Times journalist had indeed hacked into the NightJack account. The next day at the New Statesman I drew attention to the worrying possibility that the Times may have therefore misled the High Court. It was the first time the possibility had been raised that the High Court had been misled.

Then, on 19 January 2012, the Times itself admitted the computer-hacking incident was in respect of NightJack. Harding sent a letter about NightJack to the Leveson Inquiry (which was not revealed until 25 January 2012):

As you will be aware, in my witness statement to the Leveson Inquiry I raised concerns that I had about an incident of computer-hacking at the Times. I was not asked about it when questioned on Tuesday but I felt it was important to address the issue raised by the publication of my statement with our readers. So I draw your attention to an article on page 11 of this morning’s paper which seeks to give a more detailed account of what happened.

In June 2009 we published a story in what we strongly believed was the public interest. When the reporter informed his managers that in the course of his investigation he had, on his own initiative, sought unauthorised access to an email account, he was told that if wanted to pursue the story, he had to use legitimate means to do so identifying the person at the heart of the story, using his own sources and information publicly available on the internet. On that basis, we made the case in the High Court that the newspaper should be allowed to publish in the public interest.

After the judge ruled that we could publish in the public interest, we did. We also addressed the concern that had emerged about the reporter’s conduct, namely that he had used a highly intrusive method to seek information without prior approval. He was formally disciplined and the incident has also informed our thinking in putting in place an effective audit trail to ensure that, in the future, we have a system to keep account of how we make sensitive decisions in the newsgathering process.

This was an isolated incident and I have no knowledge of anything else like it. If the inquiry has any further questions about it, I would, of course, be happy to answer them.

In the meantime both Tom Watson MP and I called for Harding to be recalled to the Leveson Inquiry to answer questions about how the High Court seemed to have been misled. I also blogged that the Times owed Horton an apology. 

 

February to March 2012 -- the Leveson Inquiry questions Harding and Brett

What had really happened about the NightJack hack now began to came out. Harding was recalled to the Leveson Inquiry and provided his account of what happened, which I have drawn on for the narrative above. He also apologised to Horton and this apology was mentioned on the front page of the newspaper. The same day, Horton was reported as launching legal action.

The main thrust of Harding’s evidence at Leveson was to shift the blame on to Brett. But this did not seem entirely fair. In my opinion, once it became clear that what seemed to be a breach of the Computer Misuse Act had occurred, the editor of the Times could and should have found out more about what the court had been told. And, of course, it was Harding’s own decision to publish, even though he was aware that there had been a hack and had had an email from Brett explaining the hack’s legal significance.

The Leveson Inquiry also summoned Brett. In an extraordinary and brutal examination, in which Lord Justice Leveson took a leading role, Brett’s conduct in the matter was placed under intense scrutiny:

BRETT: [Foster] had to demonstrate to me and to certainly Horton and everybody else that he could do it legitimately from outside in, and that’s what he did.

LORD JUSTICE LEVESON: But he couldn’t. How do you know he could? Because he’s choosing what facts he’s chasing up on. Of course it all looks beautiful in his statement, and I understand that, but because he knows what facts he’s looking for, he knows what bits he has to join together, he knows the attributes and characteristics of the person he has to search out, so he can search out for somebody with those corresponding characteristics.

[. . .]

BRETT: Mr Foster had by this stage done the exercise totally legitimately.

LORD JUSTICE LEVESON: No, he hadn’t, with great respect. He’d used what he knew and found a way through to achieve the same result. Because he couldn’t put out of his mind that which he already knew.

Lord Justice Leveson turned to Foster’s reference to “confidential sources” in his witness statement.

LORD JUSTICE LEVESON: With great respect, it’s smoke, isn’t? There wasn’t a confidential source here at all. There was a hacking into an email. He may very well have talked to all sorts of people, but to say “I won’t reveal information about confidential sources” suggests he has confidential information from a source which he’s not going to talk about, for understandable reasons, but in fact it’s just not true.

Brett was asked about his assurance that the allegations about Foster were “baseless”:

BRETT: I don’t think I should have used the word “baseless”, with hindsight.

And Lord Justice Leveson delivered the final blows:

LORD JUSTICE LEVESON: Let’s just cease to be subjective, shall we. Let’s look at Mr Foster’s statement . . . To put the context of the statement in, he’s talking about the blog and he says that he decided that one or two things had to be true and that it was in the public interest to reveal it, so there he is wanting to find out who is responsible for NightJack . . . Would you agree that the inference from this statement is that this is how he went about doing it?

BRETT: Yes, it certainly does suggest --

LORD JUSTICE LEVESON: And then he starts at paragraph 12: “I began to systematically run the details of the articles in the series through Factiva, a database of newspaper articles collated from around the country. I could not find any real-life examples of the events featured in part one of the series.” That suggests that’s how he started and that’s how he’s gone about it, doesn’t it?

BRETT: It certainly suggests he has done precisely that, yes.

LORD JUSTICE LEVESON: And that’s how he’s gone about it?

BRETT: Yes.

LORD JUSTICE LEVESON: That’s not accurate, is it?

[Pause]

BRETT: It is not entirely accurate, no.

LORD JUSTICE LEVESON: Paragraph 15. I’m sorry, Mr Jay, I’ve started now. Paragraph 15: “Because of the startling similarities between the blog post and the case detailed in the newspaper report, I began to work under the assumption” -- “I began to work under the assumption” -- “that if the author was, as claimed, a detective, they probably worked . . .” et cetera. Same question: that simply isn’t accurate, is it?

BRETT: My Lord, we’re being fantastically precise.

LORD JUSTICE LEVESON: Oh, I am being precise because this is a statement being submitted to a court, Mr Brett.

BRETT: Yes.

LORD JUSTICE LEVESON: Would you not want me to be precise?

BRETT: No, of course I’d want you to be precise. It’s not the full story.

LORD JUSTICE LEVESON: Paragraph 20. I repeat -- I’m not enjoying this: “At this stage I felt sure that the blog was written by a real police officer.” That is actually misleading, isn’t it?

BRETT: It certainly doesn’t give the full story.

LORD JUSTICE LEVESON: Well, there are two or three other examples, but I’ve had enough.

That was it; there was little more that needed to be said. It was, as lawyers would say, as plain as a pikestaff that the High Court had, in effect, been misled by the Times, just as it was now clear that the Times had outed the NightJack blogger though senior managers were aware at the time that his identity had been established using an unlawful email hack and that this was a seeming breach of the Computer Misuse Act 1990.

A person’s privacy had been invaded; a criminal offence appeared to have been committed; the High Court had been effectively misled; senior managers had pointed out the legal significance of all this in contemporaneous emails; and the person’s anonymity was to be irretrievably destroyed.  But the editor of the Times published the story anyway.

 

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

Research assistance from Natalie Peck.

This post is dedicated, with permission, to Richard Horton.