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
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”.