Former Times legal chief Alastair Brett today admitted he made a ‘mistake’by failing to divulge the fact one of the paper’s reporters hacked into an email account to reveal the identity of anonymous police blogger NightJack.
Earlier this year it emerged that former Times reporter Patrick Foster hacked the emails of Lancashire police detective Richard Horton to reveal he was the man behind the award-winning blog.
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The paper controversially revealed his identity in June 2009 after it successfully overturned a privacy injunction at the High Court – but in its submission to court it claimed Foster deduced Horton’s identity using only publicly available information.
At no point did it acknowlege the fact Foster had in fact first discovered Horton’s identity through hacking into his email.
The inquiry heard today that in the days approaching the injunction hearing of June 2009, Brett received a question from Horton’s lawyers suggesting that Foster had hacked their client’s email. Brett replied that this was a “baseless allegation”. He said today: “Baseless was not the best word to use.”
Brett said he had to balance his duty of confidence to Patrick Foster, who privately told him about the computer hacking, with his duties to the paper and to the court.
He said he had initially believed Foster may have had a public interest defence under the Data Protection Act for hacking the email account, but said that he had not been aware at the time of the Computer Misuse Act, which has no public interest defence.
After being told by Foster of the computer hacking he told him to identify Nightjack using legitimate means and then defended the injunction bid on that basis.
During some of the most rigorous questioning of the inquiry so far, Leveson read out extracts from Patrick Foster’s witness statement to the High Court. He described how Foster said he identified Nightjack by cross referencing blog posts with the Factiva news database.
Leveson: “That’s not accurate is it.”
Brett: “It’s not entirely accurate no.”
Leveson read out another extract from Foster’s evidence where he explained how he began to suspect the Nightjack blog was written by Horton, not disclosing that at this point he already knew who Horton was thanks to his email hacking.
Leveson: “That’s simply not accurate is it.”
Brett: “It’s not the whole story.”
Leveson (quoting from Foster’s witness statement to the High Court): “‘At this stage I felt sure the blog was written by a real police officer’. That’s utterly misleading isn’t it?”
Brett: “It certainly doesn’t tell the full story.”
Leveson: “There are two or three other examples but I’ve had enough.”
Brett ‘open to criticism’
In written evidence, Brett said the fact that he refused to discuss computer hacking with Horton’s lawyers ‘leaves me open to criticism, particularly with hindsight and now we know what had been happening over the road at the News of the World“.
‘If there was a real possibility that the court could have been or was misled then it was my task to prevent that,’he said. “I made a strategic litigation decision in good faith. If I made a mistake in the approach I took, I accept that criticism unreservedly.”
In his defence Brett argued the case raised ‘extremely interesting and important legal principles’over the laws of confidence and privacy. “My motivation was therefore to keep the focus of the case on what I believed to be the relevant issues,’he said.
‘In over thirty years working for two very reputable newspapers, I felt strongly that the job of newspapers is to publish stories fearlessly, which are in the public interest and it was my job to fight this cause on behalf of the journalists I was advising.
‘With hindsight and the extraordinary revelations as to what had or was happening over the road at News Group Newspapers, I now concede that I may have concentrated too hard on the right of free speech, the discrete legal issues surrounding DC Horton’s application to the Court, the public interest and not enough on Mr Foster’s earlier behaviour.’
Brett said that in hindsight he could have advised Foster and then home affairs editor Martin Barrow that ‘even though the story was in the public interest, it was sufficiently tainted for it to be more appropriately dropped as carrying too high a risk that the court might be misled over background facts”.
He added: ‘If that was the approach I should have taken, then I was in error and I offer up my unreserved apologies.”
Brett acknowledged that there were ‘other options’to him and that he could have ‘shared the matter’with his counsel, Jonathan Barnes,
‘Counsel would then have been able to determine in their own mind whether the approach I had decided to take was in danger of misleading the court,’he said.
He insisted: ‘If a point had come in the proceedings when counsel was confronted with having to answer the issue directly I would have informed counsel at that point, or instructed him to abandon the case.
‘I would not have allowed him to present a false account to the court. But we did not reach that point.”
He also argued that it was not his decision to challenge Horton’s application for an injunction but Barrow’s. ‘Mr Barrow had been delegated the night before to deal with the injunction threat from Olswang and was in charge of the story from an editorial point of view,’he said.
‘Mr Barrow knew the whole background to the story and had discussed it with the editor [James Harding] on 27 May and the possibility of it being a page 4 story.
‘In those circumstances Mr Barrow was clearly in a position to instruct me to give notice to Olswang that The Times was proposing to publish the story and if they did move the court for an injunction, to resist any application on The Times’ behalf.”