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