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.)

A pro-union march in 2014. Photo: Getty
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The legacy of sectarianism is still poisoning the air of Scotland

Ruth Davidson has reinstated two Stirling councillors who posted anti-Catholic and racist messages on social media. That this kind of cretinous guff still goes on in my hometown in 2017 raises my hackles.

Kenny Dalglish was a bluenose: as a boy in the mid-60s, he and his father would make the short journey to Ibrox to cheer on Rangers, then Scotland’s most successful team. With the football allegiance came a cultural one, too. Or, probably, the other way round.

Wee Kenny could play a bit, obviously, and dreamed that his beloved Gers would sign him up. But, as Richard T Kelly writes in Keegan and Dalglish, his enjoyable new double biography of the two footballing greats, "Rangers had a certain preference for big lads, or else lads with an obvious turn of pace; and Dalglish, despite his promise, had neither of those easy attributes."

Rangers’ loss was Celtic’s gain, but it took some effort. The former, writes Kelly, "was the club of the Queen, the Union, Scotland’s Protestant majority… founded by Freemasons and members of the Orange Order, strongly tied to the shipyards of Govan. Glasgow Celtic was the team of Irish Catholic patriots, revolutionary Fenians and Home Rulers, begun as a charitable organisation… a means to bolster the faith and keep the flock out of the clutches of Protestant soup kitchens. It was going to be a serious step across a threshold for Dalglish to accept the overtures of Celtic."

In the end, Jock Stein dispatched his number two, the unhelpfully named Sean Fallon, to meet the young starlet’s family. "Fallon entered a domestic environment he felt to be 'a bit tense' -  a Rangers house, a lion’s den, if you will. Fallon even picked up the sense that Bill [Dalglish’s father] might rather his son pursue [an] apprenticeship in joinery."

The deal was done ("My dream was to become a professional footballer – the location was just a detail," Dalglish would later say) and the most gifted player Scotland has ever produced went on to make his reputation kitted out in green and white stripes rather than royal blue -  a quirk of those difficult times for which those of us classed as Fenian bastards rather than Orange bastards will be forever grateful.

Growing up in west and central Scotland, it was hard to avoid being designated as one type of bastard or the other, even if you supported a team outwith the Old Firm or had no interest in football at all. Thanks to 19th century immigration, the terrible religio-political divide of Ulster was the dominant cultural force even in Stirling, the town around 25 miles from Glasgow where I grew up and where I now live again. If you went to the Catholic school, as I did, you were a Fenian; if you went to the Proddy (officially, non-demominational) school, you were a Hun. You mostly hung around with your own, and youthful animosity and occasional violence was largely directed across the religious barricades. We knew the IRA slogans and the words to the Irish rebel songs; they had the UVF and the Red Hand of Ulster. We went to the Cubs, they went to the Boys’ Brigade. We got used to the Orange Walks delivering an extra-loud thump on the drums as they passed the chapel inside which we were performing our obligatory Sunday observance.

At the time – around the early and mid 80s – such pursuit of identity might not have been much more than a juvenile game, but it was part of something more serious. It was still the case that Catholics were unemployable in significant Scottish industries – "which school did you got to, son?" was the killer interview question if your answer began with "Saint". This included the media: in the late 90s, when I joined the Daily Record – the "Daily Ranger" to Celtic fans (its Sunday sister, the Sunday Mail, was known to Rangers fans as the "Sunday Liam") – vestiges of this prejudice, and the anecdotes that proved it, were still in the air.

The climate is undoubtedly better now. Secularisation has played its part - my own daughters attend non-denominational schools – even if, as the sportswriter Simon Kuper has observed, many are "not about to give up their ancient traditions just because they no longer believe in God". The peace process in Northern Ireland and important gestures such as the late public friendship between Ian Paisley Sr and Martin McGuinness have made a difference. And I suppose the collapse of Rangers as a footballing force, amid financial corruption that saw them dumped into the bottom tier of Scottish football, helped.

But the sensitivity remains. The 2014 Scottish independence referendum broke down in part across tribal lines, with many Celtic supporters, once Labour, now SNP, loudly backing a Yes vote, while Rangers fans were on the No side. The prospect of Brexit creating a significant border between the north and south of Ireland, which could inflame recently and shallowly buried tensions, makes one shudder. And even locally, the old enmities continue to raise their grubby heads. Ruth Davidson, leader of the Scottish Tories, is currently taking flak for allowing the reinstatement of two Stirling councillors who had posted anti-Catholic and racist messages on social media prior to their election. The pair have apologised and agreed to take part in diversity training, but I confess that this kind of cretinous guff still goes on in my hometown in 2017 raises my hackles. The rawness remains.

That this is so was brought to me a few years ago when I filed a column containing the word ‘sectarianism’ to a Scottish newspaper. Though the context had nothing to do with Catholic/Protestant or Celtic/Rangers, the editor asked me to remove it. "It’ll be deliberately misunderstood by one side or the other, and probably both," he said. "It’s not worth the hassle. In Scotland I’m afraid it never is."

Chris Deerin is the New Statesman's contributing editor (Scotland).