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

 

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.

The NightJack blog.

Pages

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

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Over a Martini with my mother, I decide I'd rather not talk Brexit

A drink with her reduces me to a nine-year-old boy recounting his cricketing triumphs.

To the Royal Academy with my mother. As well as being a very competent (ex-professional, on Broadway) singer, she is a talented artist, and has a good critical eye, albeit one more tolerant of the brighter shades of the spectrum than mine. I love the RA’s summer exhibition: it offers one the chance to be effortlessly superior about three times a minute.

“Goddammit,” she says, in her finest New York accent, after standing in front of a particularly wretched daub. The tone is one of some vexation: not quite locking-yourself-out-of-the-house vexed, but remembering-you’ve-left-your-wallet-behind-a-hundred-yards-from-the-house vexed. This helps us sort out at least one of the problems she has been facing since widowhood: she is going to get cracking with the painting again, and I am going to supply the titles.

I am not sure I have the satirical chops or shamelessness to come up with anything as dreadful as Dancing With the Dead in My Dreams (artwork number 688, something that would have shown a disturbing kind of promise if executed by an eight-year-old), or The End From: One Day This Glass Will Break (number 521; not too bad, actually), but we work out that if she does reasonably OK prints and charges £500 a pop for each plus £1,000 for the original – this being at the lower end of the price scale – then she’ll be able to come out well up on the deal. (The other solution to her loneliness: get a cat, and perhaps we are nudged in this direction by an amusing video installation of a cat drinking milk from a saucer which attracts an indulgent, medium-sized crowd.)

We wonder where to go for lunch. As a sizeable quantity of the art there seems to hark back to the 1960s in general, and the style of the film Yellow Submarine in particular, I suggest Langan’s Brasserie, which neither of us has been to for years. We order our customary Martinis. Well, she does, while I go through a silly monologue that runs: “I don’t think I’ll have a Martini, I have to write my column this afternoon, oh sod it, I’ll have a Martini.”

“So,” she says as they arrive, “how has life been treating you?”

Good question. How, indeed, has life been treating me? Most oddly, I have to say. These are strange times we live in, a bit strange even for me, and if we wake up on 24 June to find ourselves no longer in Europe and with Nigel Farage’s toadlike mug gurning at us from every newspaper in the land, then I’m off to Scotland, or the US, or at least strongly thinking about it. Not even Hunter S Thompson’s mantra – “When the going gets weird, the weird turn pro” – will be enough to arm myself with, I fear.

The heart has been taking something of a pummelling, as close readers of this column may have gathered, but there is nothing like finding out that the person you fear you might be losing it to is probably going to vote Brexit to clear up that potential mess in a hurry. The heart may be stupid, but there are some things that will shake even that organ from its reverie. However, operating on a need-to-know basis, I feel my mother can do without this information, and I find myself talking about the cricket match I played on Sunday, the first half of which was spent standing watching our team get clouted out of the park, in rain not quite strong enough to take us off the field, but certainly strong enough to make us wet.

“Show me the way to go home,” I sang quietly to myself, “I’m tired and I want to go to bed,” etc. The second half of it, though, was spent first watching an astonishing, even by our standards, batting collapse, then going in at number seven . . . and making the top score for our team. OK, that score was 12, but still, it was the top score for our team, dammit.

The inner glow and sense of bien-être that this imparted on Sunday persists three days later as I write. And as I tell my mother the story – she has now lived long enough in this country, and absorbed enough of the game by osmosis, to know that 17 for five is a pretty piss-poor score – I realise I might as well be nine years old, and telling her of my successes on the pitch. Only, when I was nine, I had no such successes under my belt.

With age comes fearlessness: I don’t worry about the hard ball coming at me. Why should I? I’ve got a bloody bat, gloves, pads, the lot. The only things that scare me now are, as usual, dying alone, that jackanapes Farage, and bad art. 

Nicholas Lezard is a literary critic for the Guardian and also writes for the Independent. He writes the Down and Out in London column for the New Statesman.

This article first appeared in the 23 June 2016 issue of the New Statesman, Divided Britain