What did the Times know about computer hacking and when?

The Guardian disclosure raises serious questions about the 2009 NightJack case.

In 2009, the Times "outed" an anonymous blogger. It was a strange exercise at the time. A "quality" newspaper devoted its resources to forcing into the public domain the identity of the author of the popular and extremely well-written police blog known as "NightJack". As Paul Waugh and others noted as it happened, it was somewhat weird and unfortunate that a newspaper which should respect anonymity as a condition for providing useful information was exposing an anonymous writer providing useful information.

Not only did the Times seek to expose the blogger, they even went to the High Court to defend an attempt by the blogger to protect his anonymity. In a detailed witness statement of 56 paragraphs and with 56 pages of exhibits, the journalist purported to show how by using considerable investigative skill and amazing detective work he was able to use minute details over several blogposts to piece together the identity of the blogger. Anyone reading this remarkable witness statement gets a sense that the journalist not only deserved his scoop, he also probably deserved a Pulitzer.

This witness statement (which I possess, but will not publish as it contains personal information about the blogger and his family) was impressive enough to change the course of the court case. As the case report states clearly at paragraph 3:

It was asserted in the Claimant's skeleton [argument - the summary of the claim] for the hearing of 28 May that his identity had been disclosed to The Times in breach of confidence. By the time the matter came before me, on the other hand, Mr Tomlinson [the blogger's barrister] was prepared to proceed on the basis that the evidence relied upon from Mr Patrick Foster, the relevant journalist, was correct; that is to say, that he had been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the Internet.

The concession by the blogger's barrister was in my view determinative of the case. If there was no breach of confidence -- or no wrongful act of any kind in obtaining the information -- then there was really no inherent privacy which the blogger to assert. There was no need therefore for the judge Sir David Eady to see whether the interference with the privacy right was proportionate or lawful; there was no privacy right to begin with. And, as Eady said, blogging is essentially a public activity.

However, witness statements and exhibits do not come about easily. There is considerable input by lawyers. The decision to fight the case would also not have been made by the journalist in question, but by his senior managers. High Court litigation is uncertain and expensive. The decision to fight the case would not have been made lightly. And key to the advice given to senior managers and the decision they made would have been that witness statement. It would have been their decision to put this evidence before a High Court judge, and not that of the journalist.

The decision looked like it paid off. They won, and the Times duly ran the exclusive. Times columnists assured us ponderously that something rather splendid had been done in the public interest. And, in the meantime, the blogger pulled his blog and faced disciplinary action from his employer. The loss of the blog was particularly unfortunate, as it robbed the public of a brilliant insight into the daily lives of police officers written by perhaps the best writer the blogging medium has ever produced.

In my view, there was always something not quite right about what the Times did. The explanation offered smacked to me of being retrospectively compiled and reverse engineered, as if someone had solved a maze by starting at the centre and then worked outwards. I do not know if this was or was not the case. Soon it was clear that these doubts were shared. Just as "everyone" in Fleet Street knew that there was something not quite right about Johann Hari's journalism or the tabloids' use of mobile telephony, it was widely held that something about the exposure of NightJack did not stack up.

But even when it became known that the journalist in question had been disciplined as an undergraduate for hacking into his university computer network (but was still hired by News International anyway), that could not take anything away from the evidence sworn and put before the High Court. The managers and lawyers at Times Newspapers Limited has confidently assured the High Court that their young reporter had single-handedly pulled a journalistic feat comparable to what took over a hundred commenters at Jack of Kent to do for "David Rose".

And so nothing happened, until last week.

Lord Justice Leveson's inquiry team sent out questionnaires to all the newspapers. One of the standard questions was about computer hacking. This clearly caused a bit of an issue for the Times. Over four witness statements the Times admitted the following facts: that there had been a computer hacking incident in 2009 by a male reporter; the computer hacking was in the form of unauthorised access to an email account; a disciplinary process had been commenced after concerns from the newsroom; the reporter admitted the unauthorised access during that disciplinary process; it was held that there was no public interest in the attempted hacking; the incident was held to be "professional misconduct" and the reporter was disciplined; and the reporter is no longer with the business having been dismissed on an unrelated matter.

What was most striking about all this was the date: 2009. Was it possible that the computer hacking was in respect of the exposure of NightJack? This would be a serious matter, for not only would it raise issues under the Computer Misuse Act, it may be that there had been perjury in the case at the High Court. Had computer hacking been admitted to the court then there would have been little doubt that it would have affected the outcome of the case.

So a careful process was commenced. I blogged here yesterday putting together what the witness statements told us whist Paul Waugh at Politics Home made connections between the new evidence and the NightJack case, about which he had previously written. Tom Watson MP, the blogger Old Holborn, and others, asked questions on Twitter. But what was missing was a firm connection: there was no direct link between the new evidence and the NightJack case. It may not have been the same journalist, and it may not have had anything to do with a published story. I sent an email query to the Times (it remains unanswered).

And then, last night, the Guardian stated that the 2009 incident was in respect of NightJack. So, instead of answering a formal email request or properly disclosing it to the Leveson inquiry, a "source" leaked it to David Leigh of the Guardian. This was an odd move, not least because the journalist in question now writes regularly for the Guardian on media matters. (Yes, that irony is indeed correct: the Guardian uses a media correspondent with a record of computer hacking.)

One cannot be certain that the Guardian is correct without further evidence or an open admission. But if it is right, then this opens up some extremely serious questions for the Times. At some point in 2009 the internal managers and lawyers at the Times became aware that the High Court had proceeded on a flawed basis in dealing with the NightJack injunction. This information may have come out before the court hearing or afterwards. They would also have become aware that a major exclusive had been based at least in part on computer hacking. If the Guardian revelation is sound, then it would appear that the Times needs to explain who knew what and when, and why nothing has been done about it until Lord Justice Leveson's questionnaire.

In all this, one should not blame the journalist too much (and you may notice he has not been named in this post other than in the quotation from the case report). He did what one suspects many young and ambitious journalists would do if they could get away with it. The real failure here would appear to be -- as with Hari at the Independent -- one made by managers at the Times, and perhaps those who advise them. If the Times did throw its financial and legal might behind a story which they knew to be based on computer hacking and did not inform the court -- or found out later, and still told no one about it -- then that, in my view, would be a scandal perhaps comparable to the tabloids' abuse of phone hacking.

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

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.)

Neville Chamberlain returns from meeting Hitler in September 1938. Credit: DAILY HERALD ARCHIVE/SSPL/GETTY IMAGES
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Did Neville Chamberlain create the conditions for the RAF to win the Battle of Britain?

The wartime prime minister has long been reviled as the arch appeaser of Hitler and Nazism.

Flying through blue sky towards London, the Luftwaffe crews were in a confident mood. It was 15 September 1940 and their commanders had told them that, after weeks of intensive combat, the RAF was all but beaten. Even when the first British fighter planes appeared on the horizon, they remained dismissive of the threat. “Here come those last 50 Spitfires,” sneered one pilot of a Dornier DO-17 bomber. But complacency soon turned to fear. Badly misled about the strength of Britain’s defences, the Luftwaffe suffered heavy losses at the hands of Fighter Command. That day marked a decisive defeat for Germany. Hopes of achieving air superiority were extinguished. On 17 September Hitler issued a formal directive postponing indefinitely his plan to mount an invasion of Britain.

The resonance of the Battle of Britain is all the more powerful today, given that this month marks the centenary of the RAF’s foundation. Created in April 1918 through a merger of the Royal Flying Corps and the Royal Naval Air Service, the force came into being largely as a result of political pressure for an effective response to German bomber and Zeppelin attacks on southern England. More than two decades later, against a much deadlier aerial threat from Germany, the RAF had its “finest hour”, as Winston Churchill famously said. The name of Churchill will feature heavily in the RAF centenary commemorations. But in contrast, that of his predecessor in No 10, Neville Chamberlain, is likely to be either ignored or disparaged. Where Churchill is seen as the architect of salvation, Chamberlain is considered to have brought Britain to the brink of disaster.

According to the conventional narrative, his cowardly policy of appeasement emboldened Hitler, while his mix of parochialism and thrift left the country ill-prepared for war. In the memorable insult of Lloyd George, he saw “every problem through the wrong end of a municipal drainpipe”.

But this portrayal does Chamberlain a gross historical injustice. For all his undoubted flaws, including his vanity and self-delusion about Hitler, he deserves a large amount of credit for the RAF’s success in 1940. Far from leaving our defences ill-equipped, he was the leader responsible for ensuring that Britain had the planes ready for the titanic struggle against the Luftwaffe. For most of the 1930s, while he was prime minister and chancellor, his decisions provided the funds for the RAF’s expansion and ensured the money was focused on fighters. As he wrote to his sister Ida in July 1940: “If I am personally responsible for deficiencies in tanks and guns, I must equally be responsible for the efficiency of the RAF.”

In the 1930s, Chamberlain had a crucial impact on air policy because he challenged the RAF orthodoxy, which held that its central purpose was to deter a continental enemy by the threat of devastation through strategic bombing. This theory of the so-called knockout blow was known as the “Trenchard doctrine” after the first head of the RAF, Hugh Trenchard, who put all his faith in bombers and believed that fighters were an irrelevance. “The aeroplane is no defence against the aeroplane,” he once said. Even after he departed in 1930, Trenchardism remained in the ascendant until Chamberlain broke its grip.

It must be admitted that he did so partly for fiscal reasons, since one bomber cost as much as four fighters. But he also saw that new technology, particularly the introduction of radar and fast, single-seater, forward-firing monoplanes like the Spitfire and the Hurricane from the mid-1930s, had the potential to transform aerial combat by making bombers far more vulnerable.

Contrary to his quasi-pacifist image, Chamberlain showed a keen interest in the technical details of the new fighters, telling the House of Commons in May 1938 about their record-breaking speeds and their advanced features, such as “engines of unprecedented efficiency” and “variable pitch airscrews”. Indeed, in his enthusiasm for the Spitfire and Hurricane, Chamberlain showed more insight than Churchill, who, as a Tory backbencher, felt that the RAF should be concentrating production on two-seater fighters with rearward-firing turrets. In 1938 Churchill explained: “The urgency for action arises from the fact that the Germans must know we have banked on the forward-shooting, plunging Spitfire, whose attack must most likely resolve itself into a pursuit which, if not instantly effective, exposes the pursuer to destruction.”

Exactly such a plane was being made, though not in the quantities that Churchill wanted. It was called the Boulton-Paul Defiant and proved a disaster in the war, offering little more than target practice for the Luftwaffe.

Fortunately for the RAF, Chamberlain prevailed. Under his leadership, the entire focus of the government’s rearmament programme was on fighter defence. “I have won all along the line,” he wrote triumphantly in 1934 when still chancellor, after he persuaded the RAF and cabinet colleagues to agree an increase in the number of home squadrons.

****

Contradicting his reputation for parsimony, Chamberlain poured money into a succession of 13 RAF expansion programmes, while, as prime minister, he approved the construction of a series of aircraft factories, most notably the world’s largest plant at Castle Bromwich in Birmingham, which was meant to produce 1,000 Spitfires by June 1940. By 1939, rearmament was swallowing 21.4 per cent of Britain’s gross national product, a figure that reached 51.7 per cent by 1940. When Chamberlain finally declared war in September 1939, Britain’s aircraft output had overtaken that of Germany’s.

During the war, Labour liked to portray Chamberlain as one of the “guilty men” whose folly had almost resulted in national humiliation. Yet much of his air force rearmament was accomplished in the teeth of ferocious Labour opposition, especially before 1938. As Labour leader between 1932 and 1935, George Lansbury, who was a Christian pacifist, said he would “disband the army and dismiss the RAF”.

The 1938 Munich Agreement was central to the “guilty men” charge sheet against Chamberlain. That is understandable. But apart from the cold reality that there was little public appetite for conflict at the time of Munich, Chamberlain understood that Britain’s aerial defences were still too weak for war. Just before he left Heston airport on 29 September, he received a letter from Sir Charles Bruce-Gardener, the chairman of the Society of British Aircraft Constructors, who privately warned that “if war was declared, the equipment available for the RAF, both in types and numbers, was far below that of the German air force”.

Munich undoubtedly bought Britain time for the RAF to modernise dramatically over the next two years. In autumn 1938 Fighter Command had just 25 squadrons, mostly made up of obsolete biplanes. By the eve of the Battle of Britain, there were 58, most of them Spitfires and Hurricanes. Denis Webb, a manager at the Supermarine company that built the Spitfire, wrote, “Chamberlain’s despised scrap of paper gave us a good return”.

Chamberlain died from cancer in November 1940, but lived long enough to see the victory in the Battle of Britain. 

Leo McKinstry is a biographer and historian

This article first appeared in the 18 April 2018 issue of the New Statesman, Enoch Powell’s revenge