The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • MR ALASTAIR JOHN BRETT (sworn).

  • First of all, your full name, please?

  • You provided the Inquiry with a witness statement signed and dated by you 5 March under a standard statement of truth. Is this your formal evidence to the Inquiry?

  • In terms of your career, after working at two firms of solicitors, you moved to the Times in 1977 and for 33 years, until 2010, you were the in-house lawyer at TNL, Times Newspapers Limited, which of course is the publisher of both the Times and the Sunday Times; is that correct?

  • You tell us that you worked under eleven editors, you've plainly had vast experience in the area of media law generally?

  • And you provided, along with Sir Charles Gray, a submission to this Inquiry which we may well come back to at the end of your evidence, if I may.

    We've asked you to deal with the NightJack story and Mr Foster. Can I take you first of all, please, to paragraph 8 of your statement?

  • So we understand the context. Patrick Foster saw you on about 20 May 2009 about a story he was working on. He came into your office with Mr Martin Barrow, who was the home news editor, his immediate line manager. Mr Barrow indicated that Mr Foster had a problem about a story he was working on. Mr Barrow then left and there was a conversation off the record. What does "off the record" mean in this sort of context, Mr Brett?

  • A duty of confidentiality. The journalist would say, "Can I talk to you in confidence, Alastair?"

  • What would be, though, the limits of that duty? Presumably duties owed to the court would be higher duties, would they not?

  • Yes, that would be right.

  • Neither is quite the same as a privileged situation, is it?

  • A privileged situation would obviously be where you're giving advice of some kind or other but that presupposes --

  • He's just about to ask you for some.

  • So would you consider that privileged?

  • I probably would regard it as privileged, yes. Privileged and confidential.

  • So it attracts, in your view, legal advice privilege, have I correctly understood it?

  • But he's not your client.

  • No, my employer is my client. This is the dilemma you're faced with. You have a journalist coming to you and saying, "Can I talk to you Alastair, I need some advice, can I talk to you confidentially?" and I would say, "Yes, of course you can". That leads you into the difficult dilemma that you obviously have personal relationships with the journalists on the newsroom floor, but you equally have a duty to your employer, the company, the newspaper. And the two don't necessarily go in the same direction.

  • I understand that, but why would there be legal advice privilege? If somebody comes to me for advice now, not when I was in practice, besides telling them it's not worth a great deal, I don't suppose that the discussion would engage privilege at all, would it?

  • In your current situation, no. But even before.

  • If I'm approached by somebody for legal advice, and I was, I think I would regard that as covered by legal professional privilege.

  • I'll have to think about that.

  • It raises all sorts of interesting questions about in-house lawyers.

  • But maybe you're using the term "off the record", if I may say so, without legal precision. Clearly you would be advising your employer, that entity would be your client, and legal advice or legal professional privilege would attach, but if you're advising an employee of your employer, and that employee may be in breach of duty to his employer, then there's -- I won't say a difficult situation --

  • That's precisely the word I was going to use: a difficult situation.

  • Maybe the correct analysis is that there isn't legal advice privilege in relation to those relations. What happens if the employer asks you to give them the gist of the conversation you've just had with Mr Foster?

  • That's precisely when I have a ghastly, horrible, difficult situation in front of me.

  • Let's see whether it has any bearing on subsequent events.

  • This conundrum which may or may not have been identified. What he told you in a nutshell was that he'd found out that NightJack was DC Richard Horton, and had been using confidential police information on his blog and that publishing a story about this would be in the public interest. But then in paragraph 9 he told you how he gained access to that information, which was by intruding into NightJack's email account; is that correct?

  • When you say, at the end of paragraph 9, this immediately raised serious alarm bells with you and you told him what he'd done was totally unacceptable, presumably your immediate reaction was: he may have committed a criminal offence?

  • You were naturally aware of some of the criminal law in this area, because you refer in paragraph 10 to the Data Protection Act and Section 55, so was it your state of mind on 20 May, before you looked up the point in any book or spoke to any barrister, that there was a public interest defence to Section 55?

  • I knew there was a public interest defence to Section 55, and this situation could be covered by that public interest defence, yes.

  • Had you heard of the Computer Misuse Act?

  • I hadn't at that stage.

  • You tell us that you sought advice from libel chambers.

  • Almost immediately after this conversation, maybe when Mr Foster was there, and the advice you received, but it was off the cuff advice, was that Section 55 prima facie applied, in other words there was an offence under Section 55 but it was subject to a possible public interest defence?

  • Yes, that's roughly the situation, yes.

  • Can I ask you to deal with the disciplinary ramifications of this? What was your thinking about the need, if any, to take this up the chain to Mr Foster's line managers?

  • Well, his line manager was Martin Barrow, who'd come into the room with Patrick Foster, and said to me right at the beginning of the conversation, "We have a problem with a story that Patrick is working on." So the line manager quite clearly knew the background to this. As the line manager of the man who's in charge of the newsroom and stories which go and do not go into the Times, I regarded the line manager as the person directly who would be discussing things with Patrick. Patrick's not my direct -- people in my department come under my control. Patrick didn't come under my control. So Martin Barrow, as the person who was directly in control of Patrick, would be the person who I assumed would take up that kind of matter.

    Patrick had spoken to me, as I said, off the record, but in a confidential way, which -- and he then apologised. When I said, "God, you just can't have done this, can you?" -- I'm afraid the language was very explicit, because I was very cross with him for having done this, and he said, "Look, Alastair, I'm really sorry, I won't do it again", because I said to him, "Look, if you ever do this again, you'll get the sack, just have no doubt about that", and so --

  • I'm sorry, what was your concern? You've worked out that he might very well have a defence under -- so he wasn't guilty of crime --

  • No, but at that stage the public interest, was it going to be in the public interest to expose NightJack?

  • But that's -- that shouldn't make you furious. That may be a nice legal question: could you argue that it's in the public interest to expose an unknown blogger? That's meat and drink for a lawyer. But talk about being in an incredibly difficult position or totally unacceptable conduct and serious alarm bells suggests, even when you're worked out there is a public interest defence, that what he was doing was utterly unacceptable. In other words, unethical, if not illegal.

  • So it's unethical even if there is a public interest defence?

  • If he'd come to me and said, "I've found out from getting into this chap's computer that a company is selling products which are going to kill people", I would have gone straight downstairs and said, "Look, we have to get this out immediately". That is a clear, manifest public interest defence, and in those circumstances I think my reaction wouldn't have been quite what it was in this case, which was -- I was told it was a one-off occasion, and he'd just done this and I thought: right, the only thing I have to do is I have to tell him, "You cannot behave like this in a proper newspaper like the Times. The only way you can ever get your story into the public domain is by doing a legitimate piece of identification."

  • But your assessment of the position is that if it had been a really rock-crushing story, so that there's no argument about the public interest, then you'd have been fine with it?

  • I wouldn't have been fine with it. No, I wouldn't have been fine with it, because I know full well, like everybody else. What I didn't know was there was no public interest defence under the Computer Misuse Act. I was assuming that this could be -- what was going through my mind was: I'm not sure which piece of legislation he's actually breached, hence my conversation with a junior barrister in 1 Brick Court. I hadn't become -- I was not even aware of the Computer Misuse Act at that stage. All I knew was that clearly illegal accessing of somebody's computer and an email was clearly a breach of some statute which was clearly not acceptable. It was clearly criminal, but it might have a defence.

  • Well -- sorry. I'll keep quiet in a bit. If there's a defence, it's not criminal.

  • Precisely. But it's still -- but I -- you can't have journalists hacking into people's email accounts.

  • I'm actually going to agree with you, but we may not have got there quite the same way. All right.

  • Mr Brett, you say in the third sentence of paragraph 12 of your statement you told Mr Foster you'd have to give careful consideration to whether or not you would report the matter to David Chappell, who is the managing editor of the paper. That might suggest that even though the conversation with Mr Foster was off the record, that wasn't going to carry very much weight if there was a need to report the matter to someone else; have I understood it correctly?

  • I think that's correct, yes.

  • And your thinking then was regardless of whether or not a criminal offence had been committed, because there were serious ethical issues here, that would warrant or might warrant consideration by those responsible for the disciplinary processes of the newspaper?

  • Can I move on then to paragraph 13? About six lines down, our page 13461:

    "He said he thought he could identify NightJack using publicly available sources of information. I told him that even if he could identify NightJack through totally legitimate means, he would still have to put the allegation to DC Horton before publication."

    And you explain that that is called "fronting up", and that's an essential part of Reynolds.

    So was it thinking at that stage that provided that Mr Foster could identify NightJack using material in the public domain, it might be appropriate to publish the story?

  • Even though the identification of NightJack using publicly available sources of information would be, as I think David Allen Green explained to the Inquiry, rather like working from the inside of a maze outwards?

  • That is a perfectly correct way of describing it, working in-out. But if he or any other journalist could identify NightJack through legitimate sources and information in the public domain, then he has what I could see -- what I felt was a perfectly legitimate public interest story.

  • Can we just test this a little bit, Mr Brett. The hypothetical other journalist who doesn't know the answer to the question he or she has set himself, namely "Who is NightJack?" would have to use publicly available sources of information but working, as it were, blind. Mr Foster had the advantage of knowing the answer to his question, and therefore having to tie up, a much easier exercise, the identity which he knew with publicly available material which he could ascertain, perhaps using the identity which he knew. So, working from the inside of the maze outwards with Mr Foster, the hypothetical journalist is working from the outside of the maze inwards, isn't he or she?

  • I totally agree that it would be more difficult for a journalist who hadn't been inside the maze to get there.

  • But isn't it really rather just cosmetic that, okay, Mr Foster might be able to do this by ascertaining legitimate sources of information, but he knows the answer anyway, it's a much easier exercise, it's a cosmetic process?

  • Because he had to demonstrate to me and to certainly Horton and everybody else that he could do it legitimately from outside in, and that's what he did.

  • But he couldn't. How do you know he could? Because he's choosing what facts he's chasing up on. Of course it all looks beautiful in his statement, and I understand that, but because he knows what facts he's looking for, he knows what bits he has to join together, he knows the attributes and characteristics of the person he has to search out, so he can search out for somebody with those corresponding characteristics.

  • All I can say is that at the time he persuaded me that he was able, through the Jujitsu Club, the references on the blog site to cases which he'd been able to identify, that he could quite clearly show that the only person who had to be NightJack was DC Horton. He was the only DC of the Jujitsu Club.

  • It is made, though, a lot easier for Mr Foster if he knows the answer, isn't it?

  • Why didn't you at this stage, Mr Brett, just say to him, "Let's forget this story, let's move on to another story", give Mr Foster the appropriate earful, or perhaps more, and move on?

  • But Mr Jay, my job is not to tell journalists which stories they should pursue or not. My job is to react to somebody bringing a story to me and me then saying either this is publishable or it's dead in the water. Martin Barrow could have said to him, "Look, we just have to lay off this story", but he didn't, I don't think, partly, I suppose, because of what I'd said.

  • Could you not foresee problems, that if the matter turned litigious, as it did, then a certain account of what happened would have to be given to the court?

  • At that stage I didn't think -- and I think as I make clear in my statement, I didn't believe that Horton -- Horton had been approached by Patrick Foster on the Wednesday, and that caused the letter from Olswang to come to the Times, to the editor's office. I didn't actually think that Horton would actually, in the light of what he had said to Patrick Foster, would commence proceedings. That absolutely surprised me. And so I wasn't thinking in those -- at that stage that this would provoke court proceedings.

  • Let's examine the chronology. Mr Foster having, as it were, cracked the code on or about 27 May --

  • No, no, no, earlier, much earlier. He cracked the code -- if you're talking about when he guesses the password to NightJack's email -- no, you're not?

  • No, I'm talking about ascertaining his identity through publicly available sources of information.

  • Yes, that's something that --

  • The second cracking of the code, that happened on or about 27 May. Mr Foster then speaks to DC Horton. There's a conversation where DC Horton does not deny that he's NightJack but says, "You'll get me into trouble with my employers if you publish", or words to that effect?

  • That very answer from DC Horton effectively establishes that -- well, Mr Foster knows anyway who he is, but it's pretty strong evidence in Mr Foster's mind?

  • And then there is a letter, which I think is page 1 of JH3, where there's the first mention of possible litigation.

  • So, contrary to your prognostication, as it were, it's clear by then that the matter could well be turning litigious; is that right?

  • Moving on to paragraph 16 of your statement:

    "It then seems that the editor delegated to Mr Barrow or Keith Blackmore, the deputy editor, the job of giving instructions to Stuart Patrick, the night lawyer on duty to give an undertaking that the Times would not publish the story ... without giving Olswang ... 12 hours notice ..."

    Where do you get that from, the editor giving instructions?

  • I was not in the office on that day. I was never shown that letter until the next morning when Martin Barrow asked me to go down and see him.

  • The undertaking itself is at page 3 of JH3. You were away for a couple of days. You returned to the office on 28 May and then there was a conversation with Mr Barrow, I think, which you had?

  • Can I ask you, please, about that conversation, paragraph 18 of your statement. You regarded this as a matter of legal interest, because it raised section 12 HRA issues and contemporary issues regarding the anonymity and identity of bloggers?

  • You say four lines down paragraph 18:

    "I remember making two specific points. First, it was very likely that NightJack would be identified and be named by his own police force in days if not weeks as they had started an inquiry ..."

    It might be said that that investigation by DC Horton's own police force was one which Mr Foster himself had instigated because he informed the police force.

  • Do you see that? So it's all part and parcel of the same web of events, isn't it?

  • It's all part of a series of events, yes.

  • But you're using as a reason something that you yourself have done. Not you personally, but the Times.

  • Certainly Patrick had approached the Lancashire police and said, "I believe that NightJack is DC Horton", yes.

  • But what had happened in the chain of events --

  • But he between the 20th, coming to see me, and the 27th, when he actually approaches the Lancashire police and DC Horton, he has done this, because at some stage he rings me and says, "Alastair, I can do this perfectly legitimately". He tells me all that on the phone and explains something about a Jujitsu club, and I can't remember exactly what he explained now because it was all oral, but he tells me that, and the next thing I know is I'm called in to see Martin Barrow on the 28th because he's approached Horton on the 27th.

  • We have a chain of events of ascertaining the identity in the first place by email hacking?

  • Then carrying out this public domain exercise --

  • -- which probably was facilitated to some extent by knowing the answer to the question, then fronting it up with DC Horton. Then Mr Foster speaking to his employer. So we're at that position --

  • -- by the time we have this call.

  • The second point that was passing through your mind at that stage was that you didn't think that there would be an application for an injunction, did you?

  • No, as you can see from my statement when I was talking to Martin Barrow, I said: in the light of what Horton said to Patrick Foster yesterday I think it's most unlikely he'll actually going for an injunction, I think this is what you might call a threatening lawyer's letter and the likelihood of it actually escalating into an injunction is very remote, and I got that completely wrong.

  • Another factor, paragraph 20 of your statement, was that Mr Barrow told you he was still keen to get the story into the Times:

    "I can now see he had emailed Mr Foster the day before saying that the editor is keen, suggests a page 4."

    The editor Mr Harding at that point would not have known about the initial email hacking, would he?

  • Unless Mr Barrow had talked to him about it.

  • Well, Mr Harding's evidence was there had been no such discussion.

  • I am absolutely sure that James didn't know about it, no, I'm sure he didn't, because I remember David Chappell telling me afterwards how cross James Harding had been when he heard the full story some time after 4 June.

  • In paragraph 21, you explain your role as legal manager. It amounts to this, that your instructions are coming from the editor or the editor's delegates?

  • Is it not, though, your duty to explain what might happen if litigation were to erupt?

  • Yes, it would be. I'd normally expect to give advice on that front and I think my reaction was I cannot believe that if you look at this in terms of straight privacy law, confidence law, that he's likely to get home and dry.

  • Although in the course of defending the application for an injunction, circumstances might arise in which a factual account would have to be given to the courts. That would obviously be foreseeable, wouldn't it?

  • And whatever the legal analysis as to where privacy law might be going at the particular point, I mean we know that Mr Justice Eady agreed with you on the first stage analysis, it's so obvious it goes without saying, the defendant owes a duty not to mislead the court?

  • But as soon as the matter did turn litigious, which it did fairly soon afterwards, didn't it become clear to you that the court would be at risk of being misled, given that you would have, through Mr Foster, to give the court an account of what occurred?

  • Mr Foster had by this stage done the exercise totally legitimately.

  • No, he hadn't, with great respect. He'd used what he knew and found a way through to achieve the same result. Because he couldn't put out of his mind that which he already knew.

  • Well, my Lord, all I can do is say that when Patrick Foster told me how he'd done it legitimately, I believed him.

  • Yes, I understand what you're saying.

  • But we can't lose sight of reality in all this, can we?

  • No. No, we certainly can't, no.

  • I just wonder, though, Mr Brett, in giving the account to the court, why not leave it to the court to decide this issue? You could tell the court, okay, we started off by email hacking, there was then this conversation -- to which privilege I suppose would have to be waived, but there isn't a difficulty about that -- on 20 May, then there's the finding it out anyway through the public domain. You could be entirely upfront with the court about this and still win the case, couldn't you?

  • Well, I personally felt that I had a duty of confidence to Patrick Foster. I told him his story was dead in the water while he had done it incorrectly. He then persuaded me that he'd done it correctly and at that stage he'd then gone to Horton, without my knowing, and put it to Horton, and Horton, as you have said, basically said neither "yes" or "no", and "I might be disciplined", and I believed and certainly Martin Barrow believed and certainly Patrick Foster believed that there was a public interest in a police officer who was misusing information and putting it onto a public blog site.

  • But you've already agreed with me, though, that the duty of confidence could be trumped by a higher obligation to undertake a disciplinary process?

  • That's what you say in your witness statement, that you were giving consideration of --

  • Yes, but only in the circumstances if Patrick Foster either did it again or began to indulge in something which I'd told him was totally unacceptable. I thought this was a one-off until the Tuesday morning when I got in, I suddenly found that apparently he'd been rusticated at Oxford and I went virtually through the roof at that stage.

  • I must say I read paragraph 12, when you say in the second line you've had to "give careful consideration as to whether or not I reported the matter to David Chappell", that that was arising out of what he did to DC Horton's email account, rather than looking forward to any future infraction. Have I misunderstood it?

  • I think I was actually concentrating on -- he told me this was a one-off. He wanted to know whether he had a public interest defence or not. I said, "You may have a public interest defence, but this is totally unacceptable behaviour by a Times journalist."

  • If you look at paragraph 12, is Mr Jay right? Just of your statement.

  • I'm pretty -- well, I can't remember exactly what I said to Patrick Foster, but I undoubtedly said to him, "Look, you cannot do this again. I'm going to have to give very serious consideration to reporting this to David Chappell", and he then almost certainly said to me, "I'm really sorry, I won't do it again".

  • The duty of confidence you refer to, that in any event would be trumped by your higher duty to the court, wouldn't it?

  • By the time you became aware, as you did subsequently, that the Computer Misuse Act 1990 was also involved, and it lacked a public interest defence, the duty of confidence which you believe existed was, to use your term, dead in the water, wasn't it?

  • My duty to the court was obviously not to mislead the court.

  • And what I was doing at that stage I was concentrating on Patrick had done this, I believed, wholly legally. As he'd done it wholly legally, I was prepared to put on one side the fact that he'd earlier, wholly improperly, hacked the email account.

  • In telling this story to the court, you obviously start at letter A and you move forward to letter Z, but in this case you were starting at letter B or C, weren't you?

  • I didn't believe that was the case, no. I believed that he was -- if he could do this wholly legitimately and there was a public interest in it, I didn't think he had to make an admission that he had committed a criminal offence, or not, as the case may be, depending on the public interest element to it.

  • You explain in your statement that you didn't obtain either junior or leading counsel's advice on this particular point?

  • You didn't think it was right to say -- I don't want to embarrass Mr White, but to say to Mr White, "Now look, there is a background to this that you ought to know about so that we under no circumstances mislead the court"?

  • I never certainly mentioned it to Antony and I was working still on the basis of -- perhaps I was making a wrong decision but I was compartmentalising things. I was putting the earlier email hacking into a compartment and that was prior to what I believed was a wholly legitimate process of identification.

  • In terms of the sequence of events -- we know much of the relevant sequence through Mr Harding, when he gave his evidence -- information came to light I think on 2 June that Mr Foster had been temporarily rusticated at Oxford for accessing a computer unlawfully; is that correct?

  • I think the relevant emails are in JH4. Page 27. At the bottom of the page you send an email to junior counsel at 9.00 in the morning when you refer to the skeleton arguments. You refer then to your opponent's second witness statement. That made reference to the rustication, temporary though, at Oxford, didn't it?

  • Then you expressed certain views about the law, and then on the next page, page 28, the continuation of the email:

    "Better to be forearmed in case it turns nasty."

    So this is always still a reference to the Oxford matter, it's not a reference to the second email hacking of DC Horton's account, is it?

  • Well, there's the first email hacking back in Oxford years before?

  • And then there's the one which happened only a couple of weeks before this email of DC Horton's email account.

  • So the two occasions. So we're only looking at the first occasion, we're not looking at the second, are we?

  • I'm basically saying I would like advice from you as to what happens if, given what we now know about Oxford, he has actually hacked somebody's computer in an unauthorised way. I'm asking a second opinion from a second barrister, because the first barrister at 1 Brick Court had -- we'd only discussed the DPA.

  • He wasn't a criminal lawyer, presumably, a libel lawyer?

  • No, he wasn't, he was a libel lawyer.

  • Staying on the email on page 27 of JH4, you say:

    "Given Patrick's misdemeanours in Oxford, it may well suggest he has been a naughty boy, even though he can explain how he got Horton's name."

    Well, his explanation about how he got Horton's name was by hacking it. That was the explanation, really. So you're not being clear with Mr Barnes is what I'm just asking you about, I'm afraid, Mr Brett.

  • I'm being oblique to an extent which is embarrassing, yes, with Mr Barnes.

  • Because, to be clear, Mr Barnes did not know about Mr Foster's email hacking of DC Horton's account, did he?

  • We're looking here at Oxford, although you are saying this is sort of similar fact evidence or you're suggesting there might be similar fact evidence, he's naughty once, he might be naughty a second time, he may well suggest he's been a naughty boy even though he can explain how he got Horton's name. You're not suggesting there that Mr Barnes knew the facts in relation to the DC Horton hacking?

  • But you were pointing out a possible difficulty. And when you say on the next page, the continuation of the email, "Please do not say anything to him", him there is Mr Foster, "or Antony", Antony White, this is about the Oxford issue, not about the DC Horton email hacking issue, is it?

  • I think I'm actually referring to the Horton incident here. I don't -- no, I can't be, because it's all -- I mean, yes, Jonathan knows nothing about this.

  • I'm just clarifying that. If it were a reference to the Horton matter then Mr Barnes would know something about it, but he didn't.

  • No, no, no, no. Yes, he didn't know.

  • The advice you got from Mr Barnes, which was targeting to the Oxford issue, although the same legal point which arises in relation to the Horton issue, he rightly points you to the Computer Misuse Act and there isn't a sniff of a public interest defence?

  • That was the first time that you were aware of the greater difficulty here with what Mr Foster had done at Oxford and in relation to DC Horton, isn't it?

  • When Mr Barnes says, as a PPS to his email, or the PS is:

    "Shall I copy this in to Antony?"

    I don't think you deal with that, do you, later?

  • I think I spoke to him on the phone. I remember having a conversation on the phone with him, but I can't remember now exactly what was said on the phone, other than, "No, you don't need to bother copying this in to Antony."

  • We know that Antony didn't get it, so there must have been a conversation along those lines?

  • Later on:

    "It ought all to be irrelevant on Thursday, they're just looking for prej, but there's no separate law for journalists outside of, for example, section 10."

    So the point that's being made is that the Oxford incident is just prejudice in relation to the DC Horton issue, unless, of course, there's further evidence about Mr Foster hacking into DC Horton's emails?

  • But an account had to be given to the court, and it is right to say that Olswangs were onto the point that DC Horton's email might have been hacked into by Mr Foster?

  • So they were smelling a rat and they were smelling the right rat, weren't they?

  • They were certainly smelling a rat, yes.

  • Just a point about Mr Foster's witness statement. I think there's some concern about this. It's dated 2 June, which is two days before the hearing, and it's about the same time as the skeleton argument is being prepared. I mean all of this is being done in somewhat of a rush with urgent litigation, so that's understood. But if you look at JH3, page 56, this point is made:

    "Except for the information ventured in this witness statement, I will not reveal information about any confidential sources."

    Do you feel that that is misleading?

  • No, I don't. Confidential sources are people he's talked to and he may have got information about DC Horton from. And it's an absolutely typical journalistic way of saying, "I'm not going to tell you who my confidential sources are."

  • But if you look at his analysis of what he did, correct me if I'm wrong, but does he refer to any confidential sources rather than just ferreting around public domain material, including the Internet?

  • Well, there's talk about -- Patrick had phoned the publishing house which had actually commissioned DC Horton to write a book, and so he had clearly talked to various people. He'd obviously talked to the journalist at the Independent who'd actually interviewed Horton as well. So he talked to a number of people who would know that NightJack was Horton, but that's what I assumed that was a reference to.

  • With great respect, it's smoke, isn't it? There wasn't a confidential source here at all. There was a hacking into an email. He may very well have talked to all sorts of people, but to say "I won't reveal information about confidential sources" suggests he has confidential information from a source which he's not going to talk about, for understandable reasons, but in fact it's just not true.

  • My Lord, at the hearing before Mr Justice Teare on the Thursday, they had pleaded their case in the alternative: either old-style confidence law, and people -- a source who had been imbued with a duty of confidence, either Patrick Foster had got it from somebody who should have remained quiet because they'd been imbued with a duty of confidence, or it was a matter of privacy, and I was looking at it in both senses, and this particular reference on page 56 is I took it to mean a reference to what I'd call old-style confidentiality law, somebody who is breaching a confidence which they owed to DC Horton.

  • But he's not suggested at all to you or to anybody else that anybody has breached the confidence. He's not said to you, "I got this material from a source, I'm not going to tell you who", quite rightly, I understand that, "but I actually got it from a confidential source."

  • Yes, he never talked to me about -- but a journalist wouldn't necessarily talk to me about a confidential source.

  • No, of course he wouldn't, but presumably you read this statement --

  • -- to make sure that it wasn't misleading.

  • Yes. But I misread this then. If you feel that I was somehow not putting all the facts on the table, then I misread it because I took this to be a reference to what I called sources in the old confidence style, because that had been one of the arguments at the Thursday hearing prior to this statement being compiled.

  • Olswangs were writing to you on 1 June, this is page 47 of JH3, saying:

    "We also ask that your journalist Mr Patrick Foster, in a witness statement verified by a statement of truth provided to us, (1) sets out how he ascertained the following information concerning our client, (2) confirmed that he did not at any time make any unauthorised access into any email account owned by our client. In this regard a suspicion arises Mr Foster may indeed have done so."

    And then various matters are then set out. It's right to say that you didn't advise Mr Foster to address this second point, did you?

  • That's correct, I advised him to not engage on that point.

  • Because he would obviously have to say --

  • He'd have to tell the truth, precisely.

  • I just wonder, if it was all irrelevant, what was the harm of him telling the truth?

  • He'd be prosecuted. He'd come to me and told me he'd asked for full legal advice and he told me just how stupid he'd been.

  • Okay, the alternative may be he tells the truth and he's prosecuted, but of course by 3 June you know he doesn't have a public interest defence, so it's a serious situation?

  • But by 1 or 2 June, you were still thinking he might have a public interest defence?

  • Or the other alternative, I suppose, is, well, let's not put Mr Foster in this position, we won't defend the application for an injunction?

  • That would have been a possibility, yes.

  • Only you feel, though, that in failing to engage with what was a perfectly reasonable question, and you knew that it was striking at a bull's eye, as it were, the court was in danger of being misled?

  • It was, I felt, entirely a matter for Olswang to put this, and if you go to page 51, at the bottom of page 51 you'll see in the final paragraph:

    "If this is the evidence of Mr Foster, we would expect to see the matter dealt with expressly in his witness statement."

    Well, I told Patrick, and I can't remember where the email is, but I said, "Don't get engaged on this issue, you have done this legitimately now. Because you have done this legitimately now, we don't have to engage on that subject."

  • So you miss out the sentence before on page 51:

    "We note in your letter of today's date you state that the suggestion that Mr Foster accessed our client's email account is baseless."

  • We should look at precisely what you said on 2 June on page 49. You do comment on the syntax of this sentence in your witness statement.

  • It's the last main paragraph on the page:

    "As regards the suggestion that Mr Foster might have accessed your client's email address because he has a history of making unauthorised access into email accounts, I regard this as a baseless allegation with the sole purpose of prejudicing TNL's defence of this action."

    So the history which you're referring to there is the Oxford history rather than the more recent history, is it?

  • It's still part of the history, isn't it?

  • No, because I go on to explain I've got Patrick in my office at this stage and he then goes on to say he wrote an article for one of the student newspapers at Oxford exposing shortcomings in the university IT networks and so on and so forth, and I go on and that's almost directly out of Patrick's mouth I'm typing this into the computer.

  • It's not entirely baseless because actually he knew how to hack into somebody's email.

  • "Baseless" was not the best word to use.

  • But even in relation to the Oxford issue, you were aware that Mr Foster had hacked into an email account, weren't you?

  • I knew he hacked into an email account, yes.

  • So the allegation that was being made or the suggestion that was being made, even if one limits it to Oxford, it was not a baseless allegation, was it? In fact it was a well-founded allegation?

  • It's the use of the word "because he has a history of making unauthorised access into email accounts"; that's what Patrick said is just not true.

  • Because he'd only done it once?

  • That's what he told me.

  • But you're even denying that he'd done it once, aren't you, in this letter?

  • I'm trying to deny, but I absolutely accept it's a very badly formulated sentence, "history of making unauthorised access into email accounts", and I'm referring to Oxford, and I go on to spell it all out in the subsequent sentences. You can see it was not investigated by the police. As soon as he'd identified the failings, he handed over all evidence that he'd obtained to the university and he admitted breaching university regulations. The university accepted that aspects of its IT network were not as secure as they might have been. This is all -- you know, almost dictated verbatim by Patrick to me.

  • I appreciate that, but it's clear from the emails of 3 June, when you were having exchanges with counsel, that you well knew that Mr Foster had indeed hacked into an email account at Oxford, didn't you?

  • Yes, I clearly knew that, yes.

  • So if one is to examine this textually, the allegation that was being made by Olswangs, even if the allegation is confined to Oxford, was not a baseless allegation, it was a well-founded one, wasn't it?

  • I don't think I should have used the word "baseless", with hindsight.

  • To add to it that if you include within the history which is being referred to, the more recent history, that was also well-founded, wasn't it?

  • He clearly had recently hacked, yes.

  • We reach the position where, owing to a combination of circumstances, including the persistence of Olswangs and the need to give an accurate account to the court, the court was not given an accurate account, was it?

  • I do not believe that this was relevant to the clear legal issues of what went to David Eady and the issue as to whether a blogger has a reasonable expectation of privacy or not.

  • I understand that, Mr Brett, but why not fight the injunction without putting any evidence in at all? If it's a pure point of law, run it on the law.

  • We couldn't do that because, as happened on the Thursday before Mr Justice Teare, we -- Jonathan Barnes was trying to explain how you could identify DC Horton through perfectly legitimate --

  • That's the point, then.

  • You have to give some sort of account to the court to avoid losing the case, it might be said, so therefore let's not give an accurate account. That's what it amounts to, isn't it?

  • Well, I'm so sorry, but that did not occur to me. I believed that we could quite separate out the clean issues of whether or not the law of privacy was going to extend to protect bloggers, particularly where there was a public interest in actually naming that particular blogger.

  • What you could have done is just say to Olswangs and the court, "Look, we're not going to engage with the facts, we're just going to put in a skeleton argument and run this point of law. You draw what inferences you like from our failure to engage with the facts", and then see what happens. You might still have won the case, mightn't you?

  • We might, but it still begs the question how on earth you get to the point of saying DC Horton is NightJack.

  • Patrick, by this stage, had also been able to see that there had been a Facebook conversation between Patrick and --

  • Well, you can do it a million ways once you know. Just to expand, I'd just like to take a minute out. Do not misunderstand, Mr Brett, I get no pleasure from this, but the reason that it to my mind is very important is that we have a highly reputable periodical, newspaper, a highly reputable lawyer who has been advising that newspaper for a very, very long time, and there is a real issue about the closeness of that relationship and the possibility that there is room for, if you like, a blindness about the over-arching interests involved, which impact upon the practices of the press, that actually defending the point or raising some interesting legal point becomes an over-arching issue. That's why this point might be of value.

    So I am not going to try and overexaggerate its importance, but it raises the question about the extent to which it is indicative of an issue that I do have to think about. Do you understand the point?

  • In your thinking at the time, and indeed perhaps your thinking even now, Mr Brett, if you look at paragraph 48 of your statement, you were referring to the transcript of the hearing of 28 May, that's the Mr Justice Teare hearing:

    "... the court needed to see a good deal more evidence and hear further argument on the legal issues before reaching a decision. As the hearing was at such short notice, the Times had not had time to file a skeleton argument or any witness statements before the hearing. The court therefore needed to see how NightJack's name could be deduced from publicly available information."

    So rightly or wrongly you did regard it as important to be able to demonstrate that to the court's satisfaction, didn't you?

  • Yes, that became one of the issues at the hearing on the 28th, yes. It was quite clear that the court needed to know that he could be identified from information in the public domain.

  • But what the court was deciding was that he was identified from publicly available information. Not that he could be, but that it actually had happened that way.

  • Well, Hugh Tomlinson accepted that at the --

  • Of course he did because he's seen the --

  • -- witness statement and therefore he's not in a position to rebut the assertion that that's what happened. That's what's really happening here, isn't it? I mean, we'll turn to Mr Foster's statement, I'm sure, in a moment.

  • My Lord, all I can do is, rightly or wrongly, I had believed that you could separate the earlier misconduct by Mr Patrick Foster and you could then say, once he had done this legitimately, that could be presented to the court perfectly properly as he had done it legally.

    Now, I accept that you say that the two inextricably intertwine, but that, if I may say so, is a subjective judgment. I happen to take the view that you could separate out the one from the other.

  • Let's just cease to be subjective, shall we. Let's look at Mr Foster's statement. Mr Jay has dealt with paragraph 9. Then he starts to set out how he did it.

  • Sorry, I don't have the right page.

  • JH3, page 56. To put the context of the statement in, he's talking about the blog and he says that he decided that one or two things had to be true and that it was in the public interest to reveal it, so there he is wanting to find out who is responsible for NightJack. Then he talks about paragraph 9, which Mr Jay has asked you about, and then he goes on, "Only 24 hours to crack the case", which is a citation from the blog.

    Would you agree that the inference from this statement is that this is how he went about doing it?

  • Yes, it certainly does suggest --

  • And then he starts at paragraph 12:

    "I began to systematically run the details of the articles in the series through Factiva, a database of newspaper articles collated from around the country. I could not find any real life examples of the events featured in part 1 of the series."

    That suggests that's how he started and that's how he's gone about it, doesn't it?

  • It certainly suggests he has done precisely that, yes.

  • And that's how he's gone about it?

  • That's not accurate, is it? (Pause).

  • It is not entirely accurate, no.

  • Paragraph 15. I'm sorry, Mr Jay, I've started now. Paragraph 15:

    "Because of the startling similarities between the blog post and the case detailed in the newspaper report, I began to work under the assumption" -- I began to work under the assumption -- "that if the author was, as claimed, a detective, they probably worked ..." et cetera.

    Same question: that simply isn't accurate, is it?

  • My Lord, we're being fantastically precise.

  • Oh, I am being precise because this is a statement being submitted to a court, Mr Brett.

  • Would you not want me to be precise?

  • No, of course I'd want you to be precise. It's not the full story.

  • Paragraph 20. I repeat, I'm not enjoying this:

    "At this stage I felt sure that the blog was written by a real police officer."

    That is actually misleading, isn't it?

  • It certainly doesn't give the full story.

  • Well, there are two or three other examples, but I've had enough.

  • Were you fearful, Mr Brett, that had the court been given the full story, the outcome might have been different?

  • No, because, as I keep on saying, he'd done it legitimately.

  • I think there are problems with that answer now, Mr Brett, because in order to demonstrate that proposition, he has to put forward an account in his witness statement which is not a full and frank account, to put it at its lowest; isn't that correct?

  • He has certainly skirted the issues. As I'd said to Patrick, "Don't engage with the other side." The other side had been saying, "We suspect that he has accessed our client's computer."

  • I told him, "Don't engage on that, just keep it simple, say how you did it legitimately."

  • May I spell it out in these terms: suppose the witness statement said, "I started out by unlawfully hacking into DC Horton's email, so I knew who he was. I was then told that I had to do it legitimately, and this is what I did", and then he goes through everything we see in the witness statement, although he would have had to have phrased the witness statement rather differently if that was the true version, which it was. Do you think that the outcome might have been different, had the witness statement given the true, full version?

  • Patrick Foster might have been prosecuted. David Eady's analysis of the legal issues should have remained exactly the same, as it turned out --

  • Well, you won on the first issue and you also won on the second issue as an alternative.

  • You might not have won on the second issue had he known the truth.

  • I think it still would have been in the public interest. I mean, David Eady made it perfectly clear that he thought that a police officer who was breaching police regulations should be named.

  • Yes, but he had to balance then the way in which you'd got the story.

  • Your witness statement --

  • But can I just say that you could -- I mean, that was the balancing exercise and he had got it legitimately.

  • We keep on coming back to that.

    Your analysis in your witness statement to us at paragraph 48, which I've already drawn attention to, following the hearing before Mr Justice Teare, you felt that the court needed to see how NightJack's name could be deduced from publicly available information, so you were making a strategic judgment in the litigation that the version which says "I did it legitimately" had to be placed before the court. That's right, isn't it?

  • Because you might have taken the view, but clearly you didn't: we'll go before the court without any evidence at all, mightn't you?

  • That was clearly not going to work, because the Teare hearing, Mr Justice Teare was obviously of the view that there was a breach of confidence of some kind.

  • In fact it would have worked in front of Mr Justice Eady, although there might have been a judicial explosion, but you're probably right, it might not have worked in front of Mr Justice Teare, it does depend a bit on the judge you draw.

  • The other possibility is that the statement says, "I am not prepared to say how I learnt DC Horton's name, but this information is available on an entirely legitimate basis in this way", bom, bom, bom, bom, bom.

  • That would at least have the benefit of being frank.

  • My Lord, I can do nothing other than say, with hindsight and expert advice -- I mean, I will readily admit I think I should have gone to -- now, with hindsight, I should have gone and got a second opinion from another barrister, someone senior and as well equipped to advise me, as Antony was, and I should have done that.

  • But you could have gone to him.

  • He was your barrister.

  • I know, but I didn't want to put him -- I felt I'd been put into this invidious situation. A journalist had come and told me he'd done something wrong, he'd done something clearly which I thought was illegal. Then I have a duty to the newspaper and then I have a duty not to mislead the court, and I thought the journalist had put me into a crashingly difficult situation of duties and obligations and everything else.

  • Even more reason, Mr Brett, to go to Mr White and ask him for the answer.

  • Because he was the barrister actually in your case. It wasn't as if you had to trouble him --

  • And then if he says, "Well, you have to -- you can't do it on this basis, very sorry", then you can either do one of two things. You can either say, "Thank you very much, I will accept your advice, we will do whatever we're going to do in the way we're doing to do it", or alternatively, "Thank you very much, I feel I have an over-arching duty to my client, to the journalist. I think we'll go to some other silk to argue this case, we won't tell him". And then you've made a decision. A very difficult decision, a very unhappy decision, and not, I think, one that you would have made, but there it is.

  • My Lord, I -- all of what you've just said I could have done. I wish I had done.

  • When exploring the possible reasons for what happened here, it's difficult to speculate, but does it have anything to do, Mr Brett, with the fact that you had been an in-house lawyer for, by then, the best part of 32 years?

  • No, other than the fact that I thought I knew the precise legal issues of the law of confidence and privacy reasonably well and I took a view that I didn't think DC Horton would take the case to court, but he did, I got that wrong. Other than that, no.

  • Actually, doesn't that make it worse? I'll tell you why I ask that question.

  • Because many people couldn't afford to take this sort of thing to law, and therefore what the press have done, what the Times had done, using an illegal mechanism, had exposed some wrong on the basis that actually the person who was being wronged would not seek redress, would not try, and doesn't that mean that you are justifying any route you wish to take to get a story, provided in the end it's true?

  • My Lord, I am certainly not, and I don't believe I ever have adopted a "the end justifies the means" approach. I would always obviously look at whether or not there was a public interest in a story which had been obtained either in breach of confidence or some other way. I mean the number of times over the years where I have actually been shown a copy of a government report which we'd got hold of the day before it's due to come out and it's been published in the public interest, then there's a huge complaint from the department of whatever it is because we got it early, et cetera. There are endless occasions when in a newspaper you will be confronted with a public interest decision. This was one of those cases where I believed it was in the public interest that DC Horton should be named, because he was misusing police information.

    When Patrick Foster had done it, I thought properly, and I totally accept your views that you can't separate out the two, but I took the view that you could separate out the two, that was probably my mistake, but it was an innocent mistake, and I had made it absolutely -- I mean, if we go to the end of this bundle, you'll see the letter of discipline which goes to Patrick Foster, which I called for. I mean, I had said to -- you know, this is something we cannot -- you're trying to probe me as to whether I'm somehow condoning what Patrick had done. I wouldn't dream of doing that.

  • No, I'm not suggesting you're condoning what Mr Foster had done at all.

  • I am sure you did not condone what he'd done. What I'm actually probing is how the relationship between the in-house lawyer acting for a newspaper and conscious of the different way stories can emerge, this, as you knew, through an illegal hack, then manifests itself in your being open and frank with everybody. It goes back to the question which I've already used today. The press rightly hold all of us to account; who is holding the press to account?

  • That is precisely what your Inquiry is looking into.

  • That's why this issue has achieved a significance --

  • -- which, on the face of the story itself, it may not actually have, but which, as indicative of an issue, it most certainly does have.

  • I can totally understand that. I can say nothing more than in 33 years that I was at the Times, this was the one and only case I had. And God, I wish I could have done without it.

  • I would have done anything. And I mean, if you'd been in the room with Patrick Foster and me and what I said to him, I mean the air was blue.

  • I have no doubt about that. I quite understand. But equally, you understand why I'm concerned about it.

  • I think that's as far as I need go.

  • Well, I think we've done that.

    Maybe now is not the time, but I am interested in early resolution, for reasons which you've probably read about?

  • And I've said it often enough. And I'm keen to see ways, as you well know, of finding approaches through issues such as privacy, confidence, libel, which can be accessed without the cost of proceedings, and therefore I have received Sir Charles' submission and it may we'll be that we will come back to re-examine these matters on another occasion.

  • I would be delighted to help in any way I can. I did it for a number of years at the Times when we did precisely that. We offered fast-track arbitration of meaning and other issues, and I had at least up to a dozen cases where we did just that. We dealt with meaning or another discrete issue very quickly and very easily.

  • It's obviously a very important part of what I have to do. Thank you very much, Mr Brett.

    Right. Is that Monday?

  • It is Monday, yes.

  • Very good. Thank you very much.

  • (The hearing adjourned until 10 o'clock on Monday, 19 March 2012)