(This post sets out what Lord Justice Leveson has since described as a “mastery analysis” at paragraph 1.33 of his Report.)
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However, at the time, Foster took a far more encouraging view of events. Foster emailed Barrow straight after the meeting:
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Yet it was the witness statement that presented as fact that the identification of Horton had been made entirely through accessing material in the public domain.
The witness statement, in Foster’s name, was prepared by Brett. (There is nothing unusual in this. Witness statements are often drafted by lawyers, as long as the witness is then fully content with the statement when he or she signs it. In this case, the witness statement would not have been given to Foster to sign until Brett was satisfied with it.)
So the witness statement provided a compelling account of excellent detection, describing how Foster, working from scratch, had gone painstakingly through a range of information in the public domain to work out Horton’s identity as the author of NightJack. As Lord Justice Leveson later described, it looked a beautiful forensic exercise. But it was false.
The witness statement also included various flourishes that make one think that a clever and elaborate investigation had been carried out step by step. Examples of such details included:
At the Leveson Inquiry, Brett said that he was only being careful not to allow Foster to be incriminated. This is an admirable sentiment. However, that could have been achieved by other means. For example, the witness statement could have shown how it was possible for the identity of the blogger to be established by materials in the public domain without positively asserting that that was how it had actually been done.
The injunction hearing resumed on Thursday 4 June 2009. This time, the judge was Mr Justice Eady, a specialist in media.
By this second hearing, however, Horton’s application was not as strong as it had been at the initial hearing. Because Brett said that the allegation of hacking was essentially “baseless” and because of the story set out in Foster’s witness statement, Horton’s lawyers reluctantly had to drop their contention that the blogger’s identity could only have been established by breach of confidentiality or through an invasion of privacy.
Brett was careful not to tell the barristers acting for the Times about the email hack. One (perhaps unintended) consequence of this was that the barristers could not help but effectively mislead the court through no fault of their own. The hearing thereby proceeded on the incorrect basis that Horton had been identified entirely by the detective work set out in the witness statement.
So, as Eady later described in the judgment:
The following passage from the judgment was critical:
Given this concession, Eady summed up the predicament of Horton’s legal claim:
Eady is evidently much taken by the “fruits” of Foster’s apparent detective work. Hugh Tomlinson, Horton’s QC, tried to contend that there was still a public interest in protecting sources from exposure by the national press, even if their identity could be worked out by other means. But to no avail.
At the end of the hearing Eady said he would not grant the injunction. Horton had lost. But, perhaps significantly for what follows next, the judge reserved judgment and was careful to keep cover in place until his decision could be handed down, “as the matter could [then] be considered afresh if need be”. In other words, if any matter did emerge before judgment was made public, Eady could take those matters into consideration before the judgment was handed down.
So, what did James Harding, the editor of the Times, know about any of this, and when? According to his later witness statement to the Leveson Inquiry, Harding came to know of the potential identification of the NightJack blogger on 27 May 2009, the day before the originally intended publication date. He also knew of the possible injunction application the same day, though he was not told of the hack.
Harding was copied in to an email from Brett to the managing editor, David Chappell, on 4 June, the date of the second hearing. This was an important message stating that Foster had gained unauthorised access. Harding did not read the email at the time, even though it contained information about a serious and apparently criminal incident of hacking by one of his staff reporters. The email said:
This email clearly stated that there had been a hack, and that the hack was how Foster had got Horton’s name. The email also revealed that Brett had realised from the cuttings sent by Horton’s lawyers that such a hack could constitute a possible breach of the Computer Misuse Act 1990.
Harding has since explained that the point at which he became aware of the hack was the day after this email, when it was raised in a meeting with Chappell. In his written evidence to the Leveson Inquiry, Harding stated:
One would think Brett’s email of 4 June 2009 was quite clear about what Foster had done and its legal importance, in particular two points regarding exactly what Foster had done and its legal significance could not have been made clearer by Brett:
Some might ask why, when he became clear about the hacking, Harding did not try, as would seem to have happened, to find out more about the implications of it or what the High Court had or not had been told about it. However, Harding has said that he did not know at this point that the High Court had not been told about the hacking and that he would have left decisions about what to put to the court to Brett.
On 12 June 2009, Mr Justice Eady’s judgment was made available in draft. Eady held that there could be no injunction because blogging is a public activity and Horton had no legitimate expectation of privacy in respect of information that was in the public domain. There was therefore no need to balance the public interest of disclosure against that of privacy.
However, Eady also stated that even if Horton had a legitimate expectation of privacy, the public interest in disclosure of his identity would outweigh any right to privacy; but this second point was made without the court having had the benefit of hearing any argument or seeing any evidence on the email hack. It is therefore entirely possible that, had the hack been put before the court, the decision could have gone the other way.
For some reason, Harding did not read the draft judgment. But two days after the draft was provided, there was a further important email, this time from Chappell to the then deputy editor, about the impending editorial decision whether to now publish Horton’s identity:
Chappell then asked two questions showing that at least he, as the managing editor (if not Harding), was aware of the significance of Foster’s hack:
There followed a meeting on 15 June 2009 between Chappell, Harding and the then deputy editor. In the words of Harding’s later witness statement:
Brett eventually left the Times in July 2010 and Foster left in May 2011, both in circumstances unrelated to the NightJack incident.
The outing of NightJack slowly receded in time.
And then the Leveson Inquiry was established in the summer of 2011.
- the incident was in 2009;
- the reporter was male (“he”);
- the computer-hacking was in the form of unauthorised access to an email account;
- a disciplinary process was commenced after concerns from the newsroom (not entirely correct, as it turned out);
- the reporter admitted the unauthorised access during the disciplinary process (also not correct, as it was admitted before publication, let alone the disciplinary process);
- the incident was held to be “professional misconduct” and the reporter was disciplined;
- the reporter was no longer with the business, having been dismissed on an unrelated matter.