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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 Times hacked NightJack and effectively misled the High Court

The Times and NightJack: an anatomy of a failure
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.

58 comments

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olek's picture

@helenlewis 'Respected' authority - newspaper-speak for 'authority on whose opinion the entire premise of my article rests'.
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Simonstar's picture

His secret identity had to remain a secret for him to continue his work on the blog and in his day job. When the newspaper revealed him to the public, he probably would have lost his job and also his sense of security at blogging under anonymity. Was it really ethical to do so? Could a lawyer have helped prevent this from happening?
Simon - Investment Fraud Lawyer

edgarlob's picture

Quote:
"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."

It appears that The Times DID POSSESS a copy of the blog :

OFFICIAL LANCS CONSTABULARY LOG (FOI)

"Caller: Foster, Patrick
Received: 28 May 2009 13:43
Organisation: The Times
Press Officer: _ - Contact Details:_ -Deadline Date:
Logged by: Status: Closed Type: REACTIVE
Call Subject: Call Division:
Notes: Update on Pc Richard Houghton. Confidentially, as we are not meant to be
discussing this, but we are likely to be going back in court this afternoon for
an injunction hearing. His lawyers wrote to us last night instructing that we
don't print the story which we agreed to do. We want to run the story
tomorrow. Can you tell us whether you have spoken to him and whether he
has denied it or has not said anything?
Response by: - 28 May 2009 14:50 (1 hours 7 mins)
Form of Response:
Cleared by:

Response text: Patrick has been asked whether he can provide a hard copy of the
blog as it has now been shut down and is password protected. He emailed over the
hard copy which contains 90% of the content which has been emailed to PSD.
Patrick still asked for guidance on whether he has been spoken to or not and
whether he admitted it or denied it. He was told, STRICTLY OFF THE RECORD
AND NOT UNDER ANY CIRCUMSTANCES CAN HE PUBLISH, that the
question has been put to the officer and he has neither denied nor admitted being
the author of the blog - the same response he gave to The Times when questioned.
We have now launched an investigation as the statement said."

The Police had no copy and no access as it was password protected.

If, as claimed, The Times had no copy how did Foster access the blog?
Did he "crack" the password the day before The Times wrote to Dan Tench for a copy?

Also there is no "Official" request of the Times photographic requesting a photograph AT ANY TIME of DC Horton.

How did The Lancashire Evening Telegraph know the name of an anonymous blogger two hours after Foster made his allegations to The Police?
Lots of questions unanswered still in this saga.
Just out of interest:

Is it an offence for the Police to act on information obtained criminally?Is it an offence to supply the Police information obtained criminally in order that they act upon it?
And, even if they didn't know at the time, would the police be under an obligation to act against the perpetrators, on discovery and would any investigations, conclusions & findings conducted by them be negated by this? In effect would Nightjack's record & written warning withdrawn?

edgarlob's picture

Now that you are in receipt of the Official Police records from here:
www.edgarlob.co.uk
Do you feel the need to update this blog?
Police records do not seem to concur with elements of your excellent report.

David Allen Green's picture

I have now set out at The Lawyer five points which I think arise from the NightJack affair: http://www.thelawyer.com/thinking-about-the-nightjack-story/1012233.article

Kevin McNally's picture

A very good article.

I find it disturbing that in this case two of the safety barriers for modern society have shown themselves to be as corrupt as any individual or organisation that they have exposed over the years. I must now seriously reconsider the integrity of some previous newspaper exclusives.
There is no excuse for Mr Eady, he told Foster that what he did was illegal, when Foster subsequently fits things to suit how he identified his target, Eady then writes Fosters statement containing how he identified his target when he knows it is a lie. Eady then failed to mention it to the Times barristers resisting the confidentiality application in court. I bet the counsel was highly impressed, I wonder if legal people have straighteners in such circumstances, you know like in the army, "you and me, gowns and wigs off, out the back now"

David Allen Green's picture

I think your references to Eady are intended to be references to Brett?

edgarlob's picture

I hope Richard Horten's damages include the damage done to his career at Lancs Con-Stabulary.
What do you do with a briliant writer who has won the Orwell Prize and has many years loyal service in, but has one lapse that earns him a written warning?
Would you give him a highly paid post in their media communications dept informing the public how his local constabulary serves the public?
No you would give that job to the "toady" reporter who, publishes the local forces attempt to out "Nightjack" throughout his working area asap.
http://www.lancashiretelegraph.co.uk/news/4403220.Acclaimed____Night_Jac...
http://www.lancashiretelegraph.co.uk/news/blackburn/4441668.Police_Night...
http://www.how-do.co.uk/north-west-media-news/north-west-publishing/henf...
Note the dates on these two publications from the local reporter.
This is NightJack's career move to date!
http://www.lep.co.uk/news/local/net-to-close-on-flasher-in-park-1-4388061

Martin Keegan's picture

I find it impossible to believe that the lawyer for the Times (Mr Brett?) did not know about the Computer Misuse Act 1990. To me, it is likely that his claim to the effect that he only realised a CMA s1 or s3 offence had been committed is as true as his claim in the witness statement that they'd not even used email hacking in the first place.

His message to the editor looks like arse-covering, referring to the 1990 legislation as "the recent law governing email accounts". This is misdirection: there's nothing particularly special about email accounts as opposed to other functions of a computer; knowingly accessing the email function of a computer without authorisation is as criminal as accessing any other function. Before 1990, this stuff was charged (dubiously) as criminal damage, so the line of thinking is thirty years old, not "recent" even by the standards of the law.

Can someone explain to me why the journalist was not reported to the police by the in house counsel after external counsel had advised that a crime had probably been committed?

David Allen Green's picture

"Can someone explain to me why the journalist was not reported to the police by the in house counsel after external counsel had advised that a crime had probably been committed?"

 

The whole point of legal advice, and the reason one has legal professional (or "client/attorney") privilege, is that the lawyer does not whistleblow and notify the police.  There was no positive duty on Brett to report the matter to the police, and he was right not to do so.  The question is what he should have told the court.

Martin Keegan's picture

Understood, thanks. I get the idea that your lawyer mustn't grass you up.

Is there any general duty on non-lawyer colleagues to report crimes to the police?

Also, does the in-house counsel face any comeback from the Law Society for misleading the Court?

David Allen Green's picture

"Is there any general duty on non-lawyer colleagues to report crimes to the police?"

No.  There are some specific areas, like money laundering, where there is a positive duty to alert the police of a suspected offence.  But the general rule is that there is no duty on someone to report the suspected crimes of another.

 

"Also, does the in-house counsel face any comeback from the Law Society for misleading the Court?"

Am not commenting on possible consequences for anyone involved in the incident; only interested in establishing the correct narrative.

 

Dr Aust's picture

I've asked it on Twitter, but I'll ask it again here.

How on earth is Mr Harding still editor of The Times?

Whether you are convinced or not by Harding's account of what he knew when, it is clear The Times misled the High Court. After a judgement that was quite possibly heavily influenced by those fabricated statements, they then proceeded rapidly to out NightJack - irrevocably - on what I would see as pretty thin (and distinctly self-aggrandising) 'public interest' grounds.

All of this happened on Harding's watch. It was his editorial decision to publish, even when it was quite clear that the 'provenance' of the revelation was (at the least) tainted. It was also his management of his subordinates. Surely he should accept responsibility on both counts and resign?

And if he stays on, what does that say about the standards of editorial integrity of The Times, which used to consider itself the UK's 'Newspaper of record'?

Finally, if this ISN'T a resigning issue for the editor of a purportedly serious newspaper, what the hell would be? Throwing a reporter off a balcony?

Peter Jukes's picture

I talked to a senior member of The Times editorial staff when this email hacking story first broke in January. The source said that it was in the public interest to out Nightjack because he was a public servant, and some of the victims of crime he describe might be identifiable. I retorted that outing Horton only made them more identifiable! To give this source some credit, he/she conceded the point.

Madame Hardy's picture

What a first-rate piece of reporting. Clear, irrefutable, fact-backed, and devastating.

robincac's picture

Why would one ever buy a newspaper again? Outstanding piece, thank you.

David S's picture

Has any complaint about Brett been made to the Solicitors Regulation Authority? I would expect a fairly severe sanction for what he did, perhaps even striking off.

Ann Kittenplan's picture

And how's this for a Comment on a NJ post from 2008. Is there an Orwell Prize for Comments too?

David Forward says:
February 23, 2008 at 7:23 pm
United Kingdom, now that’s a joke, there’s nothing united about it at all. As for kingdom, well it is that all right, a place where everybody thinks they’re the king. King of what ever evil little empire they are building for themselves.

The politicians are such huge liars and fraudsters, is it any wonder the rancid rot of parliament has seeped right through the rest of society. Politicians outward appearances just shout out that they are out of touch with the real world and only in the job for what they can get out of it for themselves. No wonder fewer people vote at each election, there is no longer a choice of honest people you can trust.

Throughout the structure of all the authorities needed to run the country there is a culture of self survival to keep ones job by hitting all targets set by government. And so people no longer manage for the sake of the people of the land, but bean count to tick the right boxes, so as to step up a rung of the ever sinking ladder, sinking into the sick quagmire that is Nu Labour’s dictatorship hell hole.

If the troops lack the right leadership then the team falls to pieces and its everyone for themselves and survival of the fittest is the rule of the day. We are seeing all our leaders, managers and associations failing their responsibilities to those they are in charge of because they are too busy feeding spin control at Number 10. Nobody believes any of the twaddle Number 10 spouts out with every knee jerk reaction to all the disasters that they have created themselves in the first place.

If from the top down everybody was more honest and truthfully contributing to make the country a better place for all rather than spreading the greed culture that they perpetuate, then the people right at the bottom of society who have no interest in working or contributing in any way, other than to provide unnecessary cases for the emergency services, would instead find themselves appropriately trained and respected members of the community.

Until there is a change in the moral fibre of those in privileged positions at the top then the crime level will continue to rage and prisons continue to overflow. Prevention is always better and cheaper than a cure, therefore the majority will always suffer until they boot out the corrupt and start to help their fellow citizens by voting resources to where they are needed most, on a morality issue, rather than to provide a quick profit for the share holding vampires.

Ann Kittenplan's picture

In case you're interested the NightJack blog has been archived here http://nightjack2.wordpress.com/
I took myself off to the first posts and even there you can see how he ended up with the prize.

Incidentally it all rings true with long conversations I had with a PC (Police Constable) friend 20 years ago.

David Boothroyd's picture

David, you make much of your position as a liberal (and indeed a Liberal). So do you now contend that the courts ought to have ordered prior restraint on publication of the name of Nightjack?

I think the answer must either be Yes or No. If 'No', then the followup question is what this post is really all about because that was the only legal ruling involved; The Times has a lot of questions to answer about its conduct but to answer 'No' is to say that it doesn't in practice make any difference how they obtained the name.

If your answer is 'Yes', then the followup question is what has happened to your belief in freedom of expression. Most people involved in the law, and certainly everyone with a traditional liberal approach, would say that prior restraint is a form of legal censorship which should be granted only in wholly exceptional circumstances. Preventing exposure of conduct which fell "short of the standards of professional behaviour we expect" (as the official Lancs Constabulary press release put it) does not seem to be one of them.

Surreptitious Evil's picture

Most people involved in the law, and certainly everyone with a traditional liberal approach, would say that prior restraint is a form of legal censorship which should be granted only in wholly exceptional circumstances.

Like commission of an criminal offence, by the journalist, in order to gain access to the material? Your excusing of what seems actually to be a s3 CMA offence - by his current story, Forster will have caused an unauthorised change to the Hotmail data (Horton's password) and thus impaired the proper functioning - i.e. Horton getting access isn't that dissimilar to allowing journalists to "break and enter" your house and copy your documents for their personal access.

I would also note that what Foster did was, legally, far worse than the breach of "the standards of professional behaviour we expect" Horton was disciplined for.

David Boothroyd's picture

I'm not excusing anything; it's pure invention on your part. I am addressing the one external legal decision in the story. Your comment about Foster is neither here nor there; it's not a balancing operation. Prior restraint on publication is a very specific and fundamental issue.

Although Eady J accepted assurances which turned out to be wrong, his reasoning for refusing prior restraint are not touched by them. Neither you nor David Allen Green will say clearly and unambiguously whether you think that the law should have censored The Times from publishing the name of Nightjack.

AJ Hall's picture

The only person who could have made the decision as to the balance of public interest in revealing Nightjack's name or not was Eady J. It now transpires that the evidence on which he carried out that balancing act was not merely wrong but those putting it forward - who had signed statements of truth in respect of the evidence concerned - knew it to be wrong. The question, therefore, which needs to be addressed is whether Eady J. should have weighed the public interest in discouraging perjury as greater or less than the public interest in publishing news items obtained by criminal means. Those weren't the questions he was able to address, by reason of the misleading evidence, but they were in fact the questions which should have been before the court.

David Boothroyd's picture

For the avoidance of doubt, can you confirm that you are of the opinion that someone who writes anonymously can obtain a legal judgment censoring newspapers who wish to publish their identity, with criminal sanctions if they went ahead anyway? It sounds like you are, but (as with others) you don't want to say so directly and unambiguously.

Your argument rests on the erroneous assumption that Eady J was primarily interested in the way The Times identified Nightjack. In fact it is incidental to the judgment: http://www.bailii.org/ew/cases/EWHC/QB/2009/1358.html. Also, even if we accept that The Times were prima facie guilty of perjury in the evidence they presented, that doesn't mean they stand to lose on the merits of the main case; they are two separate issues.

The more interesting suggestion you implicitly make is that whether there is a legal prohibition on revealing the identity of an anonymous writer is dependant on how their identity is discovered. I wonder if you have thought through the implications of that.

MattK's picture

Seconded on Peter Jukes' second point. How do you hack an email account the way they claimed happened (guessing answers to security questions) without knowing personal details already? And normally that results in a password reset, and an email to say that has happened. Horton would have noticed this.

This does suggest that Foster played his "reconstructing after the fact" trick more than once. Not only did he retrospectively "deduce" the information he already knew from hacking, but this does seem a lot like he retrospectively explained a simple way he could have hacked the account, having already used more egregious methods.

Pigfarmer44's picture

Any emails sent to hortons account regarding the password reset would surely have been deleted by foster. If foster used a password reset mechanism by guessing the answer to a security question, then he would have had to create a new password. Unless horton had an email with this information then foster would have had to choose a random password which in all probability wouldnt have been the same as hortons original password. At this point, in order to access his account, Horton would have had to follow the same process as foster had.

Simon Pigfarmer's picture

Any emails sent to hortons account regarding the password reset would surely have been deleted by foster. If foster used a password reset mechanism by guessing the answer to a security question, then he would have had to create a new password. Unless horton had an email with this information then foster would have had to choose a random password which in all probability wouldnt have been the same as hortons original password. At this point, in order to access his account, Horton would have had to follow the same process as foster had.

Simon Pigfarmer's picture

Any emails sent to hortons account regarding the password reset would surely have been deleted by foster. If foster used a password reset mechanism by guessing the answer to a security question, then he would have had to create a new password. Unless horton had an email with this information then foster would have had to choose a random password which in all probability wouldnt have been the same as hortons original password. At this point, in order to access his account, Horton would have had to follow the same process as foster had.

Michael Taggart's picture

Just goes to show what bull it is that blog posts have to be short. Bravo; I needed that!

SimonWB's picture

Forensic blogging! Thanks.

I'm glad I never use any Murdoch products. This reinforces my decision. His corrupting influence extends throughout his empire.

One wonders whether anyone senior in an NI organ reads their emails. After the boy James the excuse is wearing a bit thin.

Nick Gordon 's picture

An outstanding piece of work, even by your normally very high standard. Thank you.

CarlEve's picture

Brilliant article David.

CarlEve's picture

Brilliant article David.

Phil M's picture

Great post.

Re the revelation above that he now works for the Guardian, he doesn't seem to have written anything for them since 5th Jan, ie just before the Leveson revelations. I think we need some information from the Guardian as to what they've done with him...

Anony Mouse's picture

And as ever, we can see that bent journalists can lie to courts with impunity, because perjury is a crime only when it's done by the little people. Patrick Foster is a liar. Alistair Brett is a liar. They lied under oath. That's perjury. They admitted to a variety of other crimes, both individually and corporately, under the computer misuse act. And they get away with it. Foster's employed by the Guardian, because boy Alan doesn't really give a shit about phone hacking so long as the stories keep rolling in, and no-one's going to be charged with anything.

Anony Mouse's picture

"oster only got the job at the Times in the first place because his dad worked there. "

And he got his job at the Guardian on his track record at the Times. The Guardian's smug claims to be opposed to hacking email are just a charade: it was absolutely obvious at the time that the Nightjack revelation stemmed from corrupt activities, so the Guardian's employment of Foster was entirely cynical. He was getting stories corruptly for The Times, and The Guardian wanted a piece of the action as well.

Blue porcupine's picture

Possibly worse than that - Guido Fawkes wrote it up that Foster was the Guardian's source at The Times for some of the hacking stuff, and that this was the reason he was eventually fired by the Times. If that is true then Foster's subsequent Guardian gigs were presumably part of the quid pro quo.

Anony Mouse's picture

What an amazing revelation: broadsheet journalists are as corrupt as tabloid journalists, journalists lie smoothly and easily under oath to courts and judicial enquiries and News International is an organisation staffed almost entirely by liars and knaves, whose newspapers will mercifully survive neither the rise of the Internet nor the inevitable US anti-bribery actions. All those years of journalists claiming to be some positive force for good, and now we see that "honest journalist" is an oxymoron.

Blue porcupine's picture

Now that is an act of destruction. Thanks for writing it. Sad proof that all it takes to fell one honest man is a rampaging egotistical twat and a bunch of people who don't read their emails properly. What a shower. And they wonder why nobody buys their poxy half-researched rags any more.

It's news to me that Horton is suing. Good for him.

Neuroskeptic's picture

Fantastic post. The Times, it is now clear, is no more than a tabloid.

SalilTripathi's picture

Outstanding.

Peter Jukes's picture

Going through this fantastically detailed account again, two things stand out:

1. Harding's explanation that he didn't know about the 'hack' looks very tenuous. It seems Brett is indeed being set up as the fall guy for a clear editorial decision.

And just as importantly

2. The current explanation of the 'hack' make no sense. Unless you know somebody's identity in advance, how can you crack their password (D.O.B, pets, etc).

Like other cases of outed bloggers, it leads me to the suspicion that some other means was used to "access the files"

McTodd's picture

Superb article, a magnificently precise description of an appalling chapter in British journalism.

Is it not ironic, however, and rather sordid, that The Guardian, which did such sterling work in exposing the widespread nature of this culture in Fleet Street now chooses to employ the egregious Patrick Foster?
http://www.guardian.co.uk/profile/patrick-foster

There's a rather amusing article here about Patrick Foster's School Days:
http://fabulousblueporcupine.wordpress.com/2009/06/17/patrick-foster-who...

severnbore's picture

A very good & thought out article, I have followed Leveson and in particular this story, although sadly never got to read Night Jack's blog.

But what a sad tale of woe this really is. Outing a blogger for what purpose?

Oh, I know it MADE A SPLASH

I hope in time to come Night Jack is well rewarded with the only thing Murdoch's empire seems to know MONEY. And hope to see a lot of them serve time.

ROFL - on bail\ police interviews by appointment! I bet Night Jack would have something to say interestingly about that.

I have long given up reading the newspapers, word processed twaddle & hobby horse content.

cyntex's picture

Will Brett ever work again?

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