The Times settles Nightjack claim for £42,500 plus costs

Why there should now be a "Nightjack" test for proposals for press regulation.

The New Statesman can reveal that the Times has settled the civil claim brought by "Nightjack" blogger Richard Horton for £42,500 plus legal costs. 

Horton brought his civil claim for breach of confidentiality, misuse of private information and deceit after it emerged that his identity had not been uncovered by some brilliant piece of detective work by a staff journalist, as was maintained by the newspaper at the time, but had been established instead by unauthorised access to the blogger's email account.

There will now be a statement in open court by the Times before the end of this month.

As there is now a criminal investigation related to this matter - a journalist has been been arrested and a former in-house lawyer has been interviewed under caution - not a great deal more can be said about the circumstances of the unauthorised access.  It is a matter entirely  for the criminal courts to determine whether there is any criminal liability arising - a settlement of a civil claim does not and should not prejudice any criminal investigation.  Certainly nothing in this post should be taken to suggest any criminal liability of any person or entity connected with the case.

And given the criminal investigation, there is little which those involved can currently say about this particular case.  Horton's lawyer Mark Lewis tells me only that whilst he is delighted that his client has won substantial compensation, nothing can put Horton back in the position that his identity was secret. 

And Horton says, "I am happy to have settled with the Times and I can now put that incident behind me and get on with my life".

 

A "Nightjack test" for press regulation?

However, there is perhaps a wider issue about the case apart from the now settled civil claim and the current criminal investigation. 

The Nightjack case raises a general point relevant to the debate on press regulation which will follow publication of the recommnedations of the Leveson Inquiry.

Quite simply, without the Leveson Inquiry's effective use of statutory powers, the Nightjack incident would never have come to light.  It is thereby a perfect example of what remains hidden with "self-regulation", still the the preferred model of many in the newspaper industry.

Here it is important to note that the story only emerged when the New Statesman analysed witness statements submitted by various figures from News International in response to formal (and legally backed) requests for evidence (the full account is set out here). 

Even then, News International was initially reluctant to give a full account, and it was only when both the editor and the former legal manager of the Times were summoned to give oral evidence to the Leveson Inquiry on the incident that the fuller picture emerged of what had actually happened.

As Prof Brian Cathcart, director of Hacked Off, told me earlier today:

The Nightjack affair is a clear case of a newspaper behaving unjustly and  it would never have come to light but for the scrutiny of the Leveson Inquiry, a body with real legal clout.

No voluntary, self-regulatory regime would ever have unearthed the facts.

This is further proof that we need an effective press regulator that has teeth and is genuinely independent the press industry as well as of government.

Tom Watson MP agrees:

I hope the Prime Minister and other members of the cabinet now realise that without the statutory powers of the Leveson Inquiry none of this whole sorry saga involving Times Newspapers and News International would ever have seen the light of day.

One test - which perhaps should be called the "Nightjack test" - of any non-statutory proposals for press regulation will be how an envisaged regulator can obtain relevant documentary and witness evidence from an unwilling news title. 

Would some non-statutory regulator really be able to obtain information from a title akin to that which the Leveson Inquiry was able to prise from News International in respect of the Nightjack incident?

For many it is difficult to see how any contractual or voluntary basis for press regulation could pass this important "Nightjack test" - it would merely (again) be regulation at the fiat of the regulated.

And unless any post-Leveson press regime can pass such a "Nightjack test" then the old pre-Leveson abuses could well continue.

 

David Allen Green is legal correspondent of the New Statesman

 

POSTSCRIPT

Richard Horton has now made the following comment below the line:

None of the above would have happened without the patient, detailed forensic dissection of the facts by David Allen Green at the New Statesman. It feels like a huge weight has been lifted from my life and after 3 years of not writing anything worth a damn, I am back writing for pleasure again. Leveson was undoubtedly the lever but without David's work at the fulcrum, I would still be sat here 3 years later strongly suspecting wrongdoing but entirely without evidence.

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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6 times the Home Office broke up British families in the name of immigration

Irene Clennell came to the UK in 1988, married a British man and had a family. In 2017, she was deported. 

Irene Clennell first arrived in London in 1988, before the Home Office’s younger staff members were even born. Soon after, she married a British man called John, and received indefinite leave to remain. They made their home in County Durham. They have two children and one grandchild. 

Now, though, Clennell is in Singapore, after being detained and forcibly deported on the orders of the British government

Her crime? She spent periods of time back in Singapore caring for her ailing parents, enough to invalidate her indefinite leave to remain. It seems the Home Office decided her parents took too long to die.

Clennell’s case matters – and not just because her husband last heard from her sobbing on a plane. Her family is the latest to be torn apart by the government’s stringent immigration rules. 

As well as an inflexible approach to the amount of time spent in the UK, the rules demand that British citizens must earn £18,600 a year to bring over a non-EU spouse – a rule that discriminates against women, who are more likely to work part-time for less pay, and those living in lower-paid regions of the country. 

With EU nationals facing an uncertain future, and the government desperate to meet immigration reduction targets, this inflexible approach matters. Here are some of the families that have felt the consequences:  

1. The father who can’t see his son

Toni Stew, from Worcester, met her husband Mohamed El Faramawi in Sharm el-Sheikh, Egypt. But this was no holiday romance – they got married six years later, and have a young son.

But because Stew works part time, in order to care for her son, she does not earn enough to sponsor her husband’s move to the UK

El Faramawi has only met his son a few times since the birth 17 months earlier.

2. A couple trying to look after their parents

Kevin Draper, from Bristol, met his wife Mae, originally from the Philippines, through friends in Hong Kong. In 1995 they settled in the UK, but then a job came up in Dubai. 

In 2011, sad news summoned Kevin home – he needed to care for his mother, who had Alzheimer’s. Meanwhile, Mae’s mother passed away, and she went to support her family in the Philippines.

She was advised to apply for a UK visitor visa, and finally received one in 2013 after two failed attempts. Having been reunited with her husband and daughter, she decided to apply for a spouse visa. But in 2014 she was told that in order to do that, she would have to return to the Philippines, and the process could take another two years.

3. A British father who was made redundant

Dominic James met his wife, an American named Katy, in 2005. After they married a year later, she managed to join him in Edinburgh for three years.

They moved out to Seattle, where they had a daughter, but the couple always intended to return to the UK. James managed to get a transfer from his employer to the Edinburgh office, but was made redundant shortly afterwards.

Despite Katy’s work experience in the UK, her visa application was denied because James, now self-employed, did not earn enough to meet the minimum income requirement rules. (The Home Office eventually granted Katy 30 months longer to stay).

4. A mother who thought the UK was home

Beverley Boothe arrived in the UK in 1979 as a teenager, to join her parents who had emigrated from Jamaica in the 1960s. 

According to Boothe, she received indefinite leave to remain in 1980. At some point in the next three decades, she lost the passport with the original stamp in it. But she assumed the Home Office had a record of her application.

It turns out they didn’t – records are only kept for 15 years from the date of the “last action”. Boothe, a criminology graduate, gave the Home Office her fingerprints and information about her family. Just before Christmas 2013, she was ordered to go to Jamaica or face deportation.

Not only did Boothe have no close family to return to, she had her own children in the UK. Although they all have British fathers, her youngest daughters were unable to obtain passports because of her status.

5. A father facing separation from his wife… and parents 

In 2012 AJ, an American, moved with his father to South Shields, Tyneside, when he went to join his new wife. There, AJ met Lian Papay, and fell in love. The couple discovered they were expecting, and married in 2013.

But Lian did not earn enough to sponsor AJ, and so her husband is forced to rely on short-term visas. Ironically, when AJ flys back to the United States, he leaves not only his wife and son, but his father and stepmother.  

6. A woman who wanted to care for her father-in-law

Gary Walsh, a Falklands war veteran, married his wife Xia Zhao, an accountant, more than 16 years ago and has two adolescent children. 

The family lived in Malaysia, but flew to the UK after hearing Gary’s elderly father was unwell. 

Xia Zhao came on a one-year visa, but after discovering how ill her father-in-law was, applied to stay and work so the family could care for him. Her application was refused, and she was advised to apply instead from China in a process that could take years. 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.