The Times and NightJack: an anatomy of a failure
The story of how, in a string of managerial and legal lapses, the Times hacked NightJack and effectively misled the High Court
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.
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.
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.
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;
- 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.