Afternoon Hearing on 15 March 2012

Alastair Brett and Stephen Wright gave statements at this hearing

Hearing Transcript

(2.00 pm) MR JAY Mr Wright, the Lawrence issue. First of all, paragraph 14 of your statement, please, where a senior figure within the Superintendents Association made a speech dealing with the repeal of the double jeopardy rule, and you had some influence over him in making that speech?
A. The influence was small, possibly. There was influence, I think, that prior to the prior to the police Superintendents Association annual conference in September 1997, I had a private meeting with the president, and he gave details of what he was proposing to put in his speech and the same thing he would have said to other reporters as well, and it's just open, but he mentioned that he was interested in the issue of the double jeopardy laws and was going to raise a case in the north-east in relation to his speech. And I said, "Well, actually I'm very interested in this as well in relation to the Stephen Lawrence case, and if there could be a change in the law and if there's suitable evidence came forward, then there might be an opportunity for a retrial." As a result of that, he inserted that in his speech and made a powerful reference to it and used it in a slide show as well. So I just wanted to emphasise once again the positive aspects of being a crime reporter.
Q. And then paragraph 18 of your statement, if I may, which gives us the background to the famous "Murderers" front page in 1997. You were advising Mr Dacre about that and obviously it was going to be his decision as to whether to publish it in that way.
A. Yes, it was. In the days and weeks leading up to that front page, and I had no idea that the editor was planning to do that until the eve of publication, but I was making my own enquiries about the case, and it was through what you would describe here as unofficial sources, about the background to the case, the background to the killers. There was an inquest going on and it was a case we were very interested in and on the eve of publication the editor sought my advice on my knowledge on the background of these five. And it in a small way perhaps helped him make his mind up.
Q. So the unofficial sources you refer to were those who knew enough about the evidence, as it then existed, to, as it were, make the link between the faces we see on the front page and the
A. Yes, I just wanted to be sure that these men remained very strong suspects.
Q. When you say "unofficial sources", were they police sources who were speaking in an unauthorised fashion, do you think?
A. Well, I'm trying to think who I spoke to. It would be well, it wouldn't be an officer in the presence of a press officer, put it that way, that I needed to understand the situation and also I spoke to other individuals who had a knowledge of the case as well from different aspects of life, shall we say.
Q. But without going into the details here, and I know you won't want to, can I just explore the possible motivation of these sources? Do you think their motivation was a determination to bring these matters into the public domain and therefore accelerate achieving justice for the Lawrence family in bringing these men to justice? Was that it, do you think, or was it something else?
A. No, I think I was making my own enquiries into the case and they, I think, respected that I wanted to research the case and be knowledgeable about it. I don't think anyone could have foreseen at that stage where this story would end up. I'm not going to reinvent history now.
Q. So it's pure speculation then as to what their motives might have been, because they didn't know what you were going to write or how it would in the end turn out?
A. As I say, I was interested in the case, I was interested in the case and I wanted to approach the case or be able to write about it, advise the editor, deputy editor, whatever, in a knowledgeable way. That's all. And if I hadn't been able to do that, then these matters of great public interest might not have well, would not have come to the fore.
Q. And your interest in the case has endured over the succeeding years to the present day?
A. That's right.
Q. You heard the evidence, Mr Wright, relating to the piece which appeared in the Mail on 8 November 2007
A. Yes.
Q. from the police witness, Mr Driscoll. Do you have to hand the online version of the article you wrote?
A. I don't, I'm afraid.
Q. We'll provide you with one.
A. Thank you.
Q. Mr Driscoll's evidence was that there was a high-level meeting the day before, on 7 November, and some of the information which was discussed at that meeting is here appearing in your piece in the Mail. I know you're not going to name anybody, nor are my questions designed to elicit names. Are we talking about police sources in the sense which I choose to use the term, namely those in the Metropolitan Police Service?
A. Um can I just say something? This article was actually a second article which was written, so there's one on the preceding day which I wrote, so this is a follow-up article.
Q. Mm-hm?
A. What I'd be I am particularly protective of sources. What I am happy to say, hopefully it will be accepted by the Inquiry, was no one on that investigation team was responsible but I'm loath to go beyond that.
Q. So no one on the investigation team
A. No. No.
Q. Can we try and narrow it down just a little bit more? Was it a police officer?
A. I would rather not say so, because if we get into that, then there's a process of elimination. I am concerned in the current climate, I have colleagues, former colleagues in the CRA who are been receiving what I would call intimidating phone calls from a certain department in the Metropolitan Police demanding to know who sources are. I find that very concerning indeed, even over innocuous matters. I'm very mindful about going into detail about these matters. LORD JUSTICE LEVESON Hmm. MR JAY I may or may not come back to that. May I explore it in this way, that you were satisfied, because you wouldn't have published the article otherwise, that what you were being told was, broadly speaking, correct?
A. I was. I was. And I might add as well that and this is important to note I did put a call in to the police before.
Q. You did put a call
A. I put a call in to the Scotland Yard Press Bureau on the eve of publication of the first article, and no objection was, from memory, no one actually came on the phone to me and said, "Please don't run this". LORD JUSTICE LEVESON Sorry?
A. When I put in a call before we published, sir, we I wrote I rang Scotland Yard press office to ask some questions about this proposed story. LORD JUSTICE LEVESON Yes?
A. Yes. LORD JUSTICE LEVESON That's slightly different.
A. No, I LORD JUSTICE LEVESON Did Mr Driscoll's evidence, therefore, come to you as a shock, about the impact that the story has had on his investigation?
A. Well, I slightly, yes. I have enormous respect for Mr Driscoll as well. There is shock in the sense that I would disagree personally that that article would jeopardise a police investigation, anyway. LORD JUSTICE LEVESON Well, yes, but can you disagree with the proposition that the publication of your article would have caused enormous concern within the inquiry team?
A. Yes. LORD JUSTICE LEVESON That it was likely to cause a potential rift between the Lawrences and the police?
A. Right. LORD JUSTICE LEVESON And that it might have an impact on one of the suspects going to one of the witnesses? I mean, I'm just
A. Right. LORD JUSTICE LEVESON repeating the facts as he told me.
A. Sorry, I'm trying to remember all the points you just made there. In terms of the witness being approached, sorry, that wasn't a consideration. In terms of the relationship with the Lawrences, all I can say is that my newspaper continues to enjoy a fantastic relationship with the Lawrences no, I'm LORD JUSTICE LEVESON Yes, I have no doubt.
A. Yes, yes. And this story was a story hugely in the public interest LORD JUSTICE LEVESON But that's the question. I'm sorry.
A. No, I yes. LORD JUSTICE LEVESON I've no doubt that
A. Yes. LORD JUSTICE LEVESON the Lawrences have a very, very great regard for your paper, which has taken an enormously important lead in connection to the death of their son, murder of their son.
A. Yes. LORD JUSTICE LEVESON But do you doubt Mr Driscoll's evidence that the carefully rebuilt relationship was at risk of fracturing because of their fear that actually this was all going to leak out again?
A. Right, I can understand why Mr Driscoll said that, and obviously he's better placed to comment on their initial reaction when that story broke. These these stories, these big ones, it is a judgment issue from a newspaper perspective as to when you write them. I would argue, I would say in my experience these iconic cases, the Lawrence ones and the like, when there are developments in them, can be very difficult for the police to control the flow of information. It doesn't always come to the Mail, I say, but sir that is the reality of the situation, and we would not have run that story had the police objected, and nor would we have run the story if we thought it was going to jeopardise the investigation in any way. LORD JUSTICE LEVESON Actually, that's what caused me to interrupt Mr Jay. Asking questions about the proposed story is one thing, but did you explain to the press office precisely what you had and what you were going to run, so they could make informed representations to you about the risk that ran?
A. Right, I cannot recall. LORD JUSTICE LEVESON I mean, if you've done that and they've said, "Get on with it", that's one thing.
A. Yes, yes. LORD JUSTICE LEVESON Then the criticism goes back if there is criticism, it goes back to the Met and their internal handling proceedings.
A. Yes, yes. LORD JUSTICE LEVESON But if you didn't, it does raise a question, and it's a very, very finely balanced issue
A. It is. LORD JUSTICE LEVESON which is very different from the sort of black and white stuff that I've been hearing about.
A. Yes. LORD JUSTICE LEVESON But it's no less important.
A. And I think perhaps there's some further evidence which will emerge which shows the next stage in this story, where we did actually hold back on something on the Lawrence case. LORD JUSTICE LEVESON Yes, I know. But we can only take it a step at a time.
A. Yes, of course, I just wanted to LORD JUSTICE LEVESON You have to follow my rather
A. I'm not going to get out of sequence here but that's what I mean for us as journalists and newspapers these are finely balanced decisions. My way of dealing with it isn't affected solely by the possibility that if we hold off, someone else might do it. That is not the a lot of things are considered, in case people are thinking, oh, they are going to ignore a request not to hold a story because they fear being scooped. LORD JUSTICE LEVESON But you can't remember whether you actually put it to the press
A. Yes, I did, but I want I did put it to them in the evening, late in the evening, a decision was taken quite late at night, quite late, to run the story, but I did ring the press office before, but I LORD JUSTICE LEVESON And told them precisely what the
A. Yes, I was, yes. LORD JUSTICE LEVESON The real question is
A. I'd say my experience, my experience, my part of my reasoning behind thinking this story is one which we should run is that we'd already named five men as the murderers. To the best of my knowledge, they were already in south London, and in my opinion, my judgment, it was unlikely a story saying that there had been a DNA breakthrough in the case, or whatever I wrote at the time, fibre breakthrough, that they were likely to go on the run. They had been living with the shadow of being suspects for a long time, and that's an important consideration for us. LORD JUSTICE LEVESON I understand.
A. Mm. LORD JUSTICE LEVESON But the issue that I was trying to raise is whether you really could say that you've taken into account the informed views of the investigating officer.
A. Yes. LORD JUSTICE LEVESON Because Mr Driscoll, he was talking with feeling. This is a professional police officer.
A. Yes. LORD JUSTICE LEVESON And he clearly felt very strongly.
A. Yes. LORD JUSTICE LEVESON You'll reach your own view about it, but he certainly seemed to me to feel very strongly
A. Yes. LORD JUSTICE LEVESON that actually this had caused real problems.
A. Yes. LORD JUSTICE LEVESON And he was the very first to say you were a driving force in the inquiry, so he wasn't trying to get at you
A. No. LORD JUSTICE LEVESON at all. He had the highest regard for you.
A. Yes. LORD JUSTICE LEVESON But he raised an issue which it seems to me is at the very core of where
A. Yes. LORD JUSTICE LEVESON we should be thinking about
A. Absolutely, and LORD JUSTICE LEVESON what should happen.
A. At the risk of going out of sequence, I might be able to say shortly that we did it a different way the next time. LORD JUSTICE LEVESON All right, well, we've done it.
A. I don't know you know what I am saying. LORD JUSTICE LEVESON I understand, but
A. Yes, you're right to, to raise that point, obviously, and I LORD JUSTICE LEVESON It's not obvious that I'm right to.
A. No. LORD JUSTICE LEVESON People are perfectly happy to disagree with me and frequently do.
A. I will do, but not on this occasion, sir. MR JAY On the second occasion, which was in September 2010, you informed the MPS press office that you were proposing to publish a story. The press office had sufficient information from what you told them to enable them to speak to Mr Driscoll, and the message came back to you with a request not to publish, do I have that right?
A. Yes. I'd like to correct that slightly. Actually I contacted the press office to say that I was aware that there may be developments in the case. I put a question to them about the possibility of charges that week, and I had no idea that the DPP had been in court seeking some sort of legal order or anything like that, that was not something I was aware of specifically, and I wasn't saying we are going to run a story, I said I want to let you know about that we are wanted to find out if it was true, firstly, and then I said I'm fully aware of how sensitive this case is and the last thing I want to do is to do anything which would jeopardise the investigation. So it doesn't matter whether I'm you know, that another paper runs it tomorrow, if you wish to make representations to me to say we shouldn't run this, then I will advise the editor accordingly, and that is what I did.
Q. The heart of the issue in relation to the earlier story, the November 2007 story, is that people would think that there had been a police leak, do you follow me, and that you were publishing on the back of that leak, and that would cause harm not necessarily to any future criminal trial, but to the ongoing delicate relationship between the police and the Lawrence family. Is that a factor you think you took into account when advising the editor as to whether or not to publish that story in November 2007?
A. (Pause). I cannot I cannot recall I cannot recall that, Mr Jay.
Q. Okay. May I just test with you this issue of trust, which obviously is very important, your credibility with the police, and you've obviously maintained that trust. But is there not a danger as well, looking at the long game, as it were, that if the police think that you are acting, as journalists are entitled to do, on the basis of stories which have been leaked to journalists, that might diminish the trust that the police might hold for that journalist?
A. Sorry, might diminish the?
Q. The trust the police hold for that journalist, because you're acting in a way which is well, I won't say unethical, because that's putting it too high, but you are acting on the basis of stories which are leaked to you and which you know are unauthorised.
A. Well, I don't know, I disagree there. My job didn't involve writing about leaks every day.
Q. No.
A. No. So and I'm led to believe that I'd like to think I've enjoyed a good, professional relationship with a lot of police officers, some very senior, and no one's ever accused no one's ever said to me, "I'm not talking to you because you received leaked information".
Q. That was the next question I had.
A. Sorry.
Q. No, not at all. So it hasn't actually been an issue in informal discussions you've had with police officers. They don't point the metaphorical finger at you and say "We're not going to trust you in the future because we know that you've been acting on the basis of unauthorised disclosures". That hasn't been an issue?
A. I think some people believe I was well informed. LORD JUSTICE LEVESON Yes, well they probably are grown up enough to say that you're trying to get as much information as you can. It's up to them to make sure you don't get what they don't want you to have.
A. Just because I'm giving information doesn't mean to say I'm necessarily going to write it, and that's the point I would make. LORD JUSTICE LEVESON Yes. MR JAY Yes. LORD JUSTICE LEVESON But the megaphone has changed. It's no longer in the hands of the police, it's now in your hands for you to decide what you want to do.
A. I would never write a story the trust Mr Jay said the trust issue is very important. I would never write a story based on someone telling me something and me not checking, "Are you happy for me to write this or not?" LORD JUSTICE LEVESON Okay.
A. So with reference to the Filkin report, there's no trickery involved in my crime reporting at all. No trickery. If people want to tell me something, or wanted to it's a matter for them, then we make a judgment on whether it's right to run the story or not. MR JAY The person who's providing you with the information, who may well be acting in an unauthorised fashion of course I'm not saying that this is the norm, I was indicating it probably only happens exceptionally that person may well be entirely satisfied that you write the story, because that's why you're being provided with the information; would you agree?
A. I'd like to think that, you know, quite a few police officers respect the role of journalists, and what we do. I say, to repeat myself, my this was a I covered the Lawrence case since 1997. There were a lot of exclusive stories I broke early in that campaign. No one complained then. And obviously some people might regard it as being a force for good, those stories, and they were unauthorised but they were for good, so I think it was well-known by a lot of people that I had a close interest in that case.
Q. When you have been provided with unauthorised information over the years, have you on occasion doubted the motives of those who have been providing you with such information?
A. Yes.
Q. And if you do doubt their motives, is that a factor, whether or not you publish a story on the back of the
A. Yes.
Q. information they provide to you?
A. There was an occasion in 2005 when I learned that the Chief Constable of Cambridgeshire had been acting in an inappropriate way with a woman at a conference, and I was concerned that this information had come to me for well, I was concerned how that I was concerned that there might be some ulterior motives and I considered the information for a couple of days, I thought very carefully about running that story because of the implications for that man's future career. As it happened, I did run the story, having thought very carefully about it, and he resigned the next day. I might add as well that individual is a man of integrity and he's never held it against me. He actually called me some time later, he recognised it was a story in the public interest.
Q. You deal with some other stories you've written over the years, paragraph 19, for example. You deal with the Commander Ali Dizaei stories and a string of exposes. Those exposes, without looking at them one by one, as it were, your sources there on occasion unofficial, unauthorised or does it vary?
A. I guess it would vary. It would vary. I mean that particular officer, who's just again been convicted of corruption, very difficult individual to deal with, not only for journalists but for police forces, police authorities, anyone who challenges his view on the world. And I had to move very delicately to gather information on that case. An extremely litigious man, extremely litigious. And we as far as I'm concerned, the Daily Mail what we did in not being in challenging that man and revealing details about what he was up to was hugely in the public interest, as was our my revelations, my colleague revelations about the cowardice at Scotland Yard, the senior officers who were scared of him, they were scared of him, they were scared of him.
Q. May I move now to the issue of hospitality. Could we see if we can deal with this broadly before looking at the detail? Do you think that part of the reason for developing semiprofessional they're always professional, let me correct that professional relationships over lunch and over dinner is to foster the degree of trust which you identify as being essential?
A. I think it's part of it. I don't I'm happy to meet a police officer for a cup of coffee, breakfast, lunch, dinner, drink, or in his office, doesn't matter to me. I think my own personal view has been an overemphasis on hospitality because for me it's just a small part of the way in which you operate as a journalist.
Q. Apart from to win the confidences of the officers you were meeting on these occasions, was it in any way in order to gain access to more of the information we've just been talking about, namely unauthorised information? (Pause).
A. Um well, I'll just put it this way. It's you know, if a police officer wishes to join you as a reporter for a coffee, a tea, lunch, whatever, it can be part of that trust-building process, but I just want to reiterate it's not exclusively that's not the exclusive way in which trust is gained. So I've had many social occasions with police officers when it has been perfectly pleasant and if I was a reporter desperate for a story, I would have been very disappointed; actually that is not how it works. You do not go along to a meeting with a police officer expecting to get a story. If you show that, then it comes across very quickly. For me it's about gaining knowledge and context.
Q. I'm sure you're right about that, Mr Wright, but it's a far more subtle process. You don't go out to lunch or dinner at a restaurant, whether it's a nice restaurant or not, expecting on that occasion for the officer to share a piece of unauthorised information with you?
A. No.
Q. What I am suggesting, though, is you might be doing that as part of a trust-building process, to use your terminology
A. Yes.
Q. which would yield in due course to that officer maybe giving you a ring on your mobile phone.
A. Well it may
Q. Is that correct?
A. It may or may not, Mr Jay, and I would not there are some police officers who I'm very, you know, aware are not everyone's different, and there are some people who I might meet for a lunch or dinner, or have done in the past, where it's more a question of them trying to find out what I'm up to.
Q. Yes.
A. I've been very conscious of that over the years.
Q. I understand that, Mr Wright, human nature being as it is. Sometimes it's the officer who wants more out of you than he's ever going to give to you. Sometimes it's an entirely neutral process, where you just wish to get to know each other better.
A. Yes.
Q. But on other occasions it may be that you are hoping in due course that the officer may provide you with unauthorised information. Have I correctly understood it?
A. I'm a journalist wanting to find out my job is to find out to find out what's going on. I say I do not whenever I've had lunch or dinner with someone, there's no strings attached. I fully respect that. If they don't want to talk in an unauthorised way.
Q. Of course. Of course, but do you think that there's any sort of relationship in causal terms between the quality of the restaurant and the likelihood of you in due course receiving unauthorised information?
A. Not at all.
Q. You say that with complete confidence?
A. Absolutely. It would be completely inappropriate to lavish hospitality on a junior officer any officer, frankly. I don't think that is the issue at all, certainly not the way I operate, it would be completely inappropriate.
Q. You're never lavishing hospitality on junior officers. They are always
A. No, and seniors. I say junior, what I any officer, frankly, any officer. What I was going to say was if you were meeting a junior officer, you know, you wouldn't take him to an expensive restaurant, and quite possibly if you're going to take out a senior officer, you wouldn't go to the transport caff around the corner, unless that individual particularly insists on that.
Q. Standing back from what the hospitality records say, and I'm certainly not going to go through all the items, when Lord Stevens was Commissioner
A. Yes.
Q. 2000 to 2005, it appears that Mr Dacre must have had a reasonably good relationship with him
A. Yes.
Q. because there were quite frequent meetings. Very often, actually, at Associated's offices, not in a restaurant.
A. To the best of my knowledge, Sir John we never met Sir John in a restaurant. It was either at Scotland Yard or at the Daily Mail building.
Q. Yes. When we move on to Sir Ian Blair, there are only about two or three relevant entries. There's lunch, it may be the same occasion, 10 and 11 October, maybe one of them was cancelled. Lunch in October 2005, a chat in June 2005 and drinks in December 2005.
A. I don't remember that.
Q. The detail isn't going to matter, but the Daily Mail's relationship with Sir Ian Blair was not quite as warm, perhaps, as its relationship was, and vice versa, with Sir John Stevens?
A. I think that Sir John Stevens, as this Inquiry has heard already, dealt with a number of newspapers which I imagine he perceived to be important newspapers. From memory I don't have the benefit of your document there I think we had a lunch with myself, the editor, key commentators in the paper, with him, probably every eight or nine months, maybe even every year, once a year, but I think he used the phrase the other day that he was grilled. He was grilled.
Q. In most years, though, but usually only once a year, you had a one-to-one lunch with Mr Fedorcio.
A. Yes.
Q. What was the purpose of those lunches?
A. I Mr Fedorcio, obviously head of press. For me it was about listening well, once a year is useful to catch up with the head of press at Scotland Yard. I also tried occasionally to talk to his number two or his number three as well. The Daily Mail was perceived to be, on some occasions, harsh about the Metropolitan Police, even before Sir Ian Blair took over, and part of my role would be to listen to those concerns and feed them back to the office about how we were dealing with things.
Q. Did you have any discussions with Mr Fedorcio about the Lawrence case?
A. When, Mr Jay?
Q. Well, first of all the general question.
A. Oh yes, I had I mean, I've had I mean, I apologise to all the press officers I have called over the years about the Lawrence case because I've been following it relentlessly. Mr Mr Fedorcio would have been asked about that, but he never spoke about it. I do not believe he had any knowledge about what was going on.
Q. So when you had lunch with Mr Fedorcio at a restaurant called Tapsters, I think it is, on 6 November 2007, the articles we're talking about were written either we know one was written on 8 November 2007 and you mention one the previous day?
A. Yes.
Q. That's a pure coincidence, is it?
A. That is a pure coincidence. That is a pure coincidence. I do not believe well, I can't remember what was spoken about that day, but I want to avoid any doubt, I am as certain as can be that not only well, he wasn't involved in telling me anything, and I, to the best of my knowledge, think we didn't even discuss it.
Q. Was he ever the source of unauthorised disclosures or information provided to you?
A. Not to me, no.
Q. Not to you, but to others, that suggests?
A. I couldn't comment, I don't know. It wouldn't be for me to say.
Q. You couldn't comment, okay. Because the Mail was taking a consistent line in relation to Sir Ian Blair. The first piece you wrote which he actually mentions in his book, 14 October 2004, it wasn't particularly hostile, but I think he felt it was. The articles over the years you're, quite entitled to write in this way, there's no criticism, were less friendly of Sir Ian Blair than they were, perhaps, of the previous Commissioner; is that correct?
A. Well, they were, but there was an explanation for that, obviously. When Sir Ian was appointed Commissioner in I think it was November 2004, I was very keen to foster a good relationship with him not a good relationship, but a working relationship. There were concerns on both sides, I'll be honest, and we met for a private lunch, there was no press officer there. Obviously what was discussed that day was confidential but it was just me saying that I will be, you know, fair and fair in our reporting, and I want to be to build, you know, a good, professional relationship with you. Unfortunately, after the 7/7 attacks, Sir Ian's career started to be affected by a series of stories about himself. So I think if you're coming up not to pre-empt what you're going to say, but unfortunately the sad reality is that Sir Ian was the architect of his own downfall because of the controversies which he attracted. It wasn't a factor it wasn't a factor of the Daily Mail having an agenda against him. As police officers followed the evidence, we as journalists followed the story, and Ian Blair made himself the story.
Q. We know that people were briefing against Sir Ian Blair over the years, but in particular from about 2006. Were you the recipient of any such briefings?
A. I was gathering I wasn't I was sorry, in 2006?
Q. Starting well, it started when he started as Commissioner, which I think was January or February 2005, but things
A. I think I think there is the 2005 there was the terror attacks. I think initially Sir Ian dealt well with those, and then there was the issue of the Stockwell case and all the controversy around that. In 2006, Sir Ian made some unpleasant remarks about the Soham case. Then it emerged that he had bugged the Attorney General and the head of the police watchdog. Then there was the issue later of his appeasement and promotion of Dizaei. There are a whole host of controversies which made Sir Ian be in the spotlight and I'd have not been doing my job properly if I'd ignored those. So I wasn't there was no need for anyone, in my opinion, to brief against Sir Ian. The stories which engulfed him were very much in the public domain and had to be reported on.
Q. So is this your evidence, that people did insofar as you were aware, did not brief against him and you did not receive the results of such briefings?
A. Well, there were
Q. Maybe I can put it more specifically, that within the management board
A. Yes.
Q. there were a couple of people in particular who were briefing against him.
A. Oh, I see.
Q. Were those people speaking to you?
A. Can I put it this way, that there was a civil war at the Yard and I'm at that particular time the top level, and it was my job to report on that. I'd be failing my duty if I didn't. And, you know, that in 2008, Assistant Commissioner Ghaffur issued race discrimination proceedings against Sir Ian and that was another sign of the disharmony at the top of the organisation.
Q. Let's assume all that is true, Mr Wright. Civil war in the Met, in the public interest to write stories about it. I think my question was more: what was the source of your stories aside from matters which entered the public domain? Were people on the management board speaking to you so that you could write stories? I think the answer is either "yes" or "no". (Pause).
A. I was aware I'm trying to think of can I put it this way? I've got to be conscious of my journalistic obligations here.
Q. Mm.
A. I was fully aware of the camps and I had information.
Q. Well, it's possible to draw inferences from that answer, but I'm
A. Well, the management board is so small, Mr Jay. It's not like asking
Q. I'm not asking you to identify who it was.
A. No, but I think, you know, you should be aware that the race claim brought by Mr Ghaffur was a very significant moment that year, symbolic of the divisions in the Met. It didn't just it wasn't just about any briefing and counter briefing within the management board.
Q. Were you particularly close to AC Hayman and AC Yates?
A. No, I wouldn't say so.
Q. Were you often to be found in this wine bar there may be more than one wine bar, though that we've heard evidence about near Scotland Yard?
A. I wouldn't say I was often there, no. Often in any wine bar, frankly. If you're seen in a wine bar near Scotland Yard frequently, it doesn't send a good message about your way of operating let alone your lifestyle.
Q. Okay. Finally on this point, Mr Wright, aside from the Commissioner Mr Fedorcio and Deputy Commissioner, when you refer to senior officers at the Met in paragraph 23 of your statement, we're looking, I suppose, at assistant commissioners and deputy assistant commissioners, are there any who bought you lunch, drinks or dinner on more than a handful of occasions?
A. Absolutely not. I have always been very keen not to something I was going to raise with the Chairman later the intensity of meetings with people and any hospitality has to be closely monitored. I've been very aware of that over the years, so not meeting people too often.
Q. And this is a point, no doubt, you'd wish to come to at the end of your evidence when we're discussing as it were the future possible recommendations.
A. Yes, of course. Yes.
Q. Can I ask you, please, a number of assorted questions. We've received some evidence in relation to the Mr Subramanyam story, who was the Tamil hunger striker, which resulted in libel proceedings which were successful from the claimant's perspective, and you, I think, were responsible for the defamatory piece; is that correct?
A. Yes, yes, yes.
Q. The piece itself referred to a "police insider"?
A. Yes.
Q. Can I ask you this: was there a police insider or was the story derived from other material?
A. There was a generic term "police sources", Mr Jay. Obviously I was I was misinformed. No excuses from my perspective. Very disappointed from a professional point of view that we got it wrong, and it was right that we put it right.
Q. So without going into this in full detail, this is another example of an unauthorised provision of information to you?
A. Yes.
Q. Did you on that occasion check the story out with the press office?
A. I did I did call the Scotland Yard press office and put a general question in. Unfortunately, they declined to comment, and it was left to my judgment whether to run it or not, and unfortunately I made the wrong call.
Q. We've heard evidence from Mr Quick, as you're aware.
A. Yes.
Q. The evidence he gave largely, not exclusively, but I may be wrong about this, related to the Mail on Sunday and not to the Daily Mail.
A. Yes, yes.
Q. Obviously you've had nothing to do with the Mail on Sunday stories.
A. Yes.
Q. But have you written any stories about him
A. About Mr Quick?
Q. Yes.
A. I think I may have written some articles in relation to the arrest of Damian Green, but with that particular story, the arrest of Damian Green, my role was very secondary in the story. My colleagues in the lobby or the home affairs were dealing that so mine was really a small role.
Q. Do you think that there was an agenda in relation to the Damian Green issue? He was a Conservative Member of Parliament. The Daily Mail tends to support the Conservative Party, and therefore part of the motivation to go for the Metropolitan Police in relation to the Green arrest, et cetera, was political?
A. No, I wouldn't accept that, although I wasn't involved in the decision-making around stories, because obviously I'm not the editor, but I wouldn't accept that I think it was there was clearly the stories speak for themselves. Across a lot of papers, there was a lot of briefing going on which appeared to come from political sources, there was, but it's us it's our role at the newspaper to decide which way we want to report it, so I don't there's no no agenda against Mr Quick, that's for sure.
Q. The Daily Mail is entitled to take whatever political position it chooses.
A. Absolutely, yes.
Q. No one is questioning that, but had Mr Green been a Labour MP, do you think the story would have been the same?
A. I can't speculate on that.
Q. Okay. Can I move on to some more general questions, then, Mr Wright? You say in paragraph 31 of your statement, our page 07735
A. Sorry, which paragraph?
Q. Paragraph 31, "Proposals for reform".
A. Oh right.
Q. Towards the end of that paragraph: "I believe that, in the current climate, clarification and new guidance on police/media relations is inevitable and must be respected
A. Yes.
Q. What are you driving at there?
A. I didn't want to come to this Inquiry today being perceived as someone who's in denial, that everything's been okay, that things can't change. That would be wrong. That's what I'm saying. I believe that the main issues around hospitality, which you've been considering in this Inquiry, it's about the closeness and the intensity of that hospitality. I think that's a key issue for me, something I've been mindful about anyway but it's something which needs to be formalised. I'm very concerned about moves to ban all informal contact. I think that's wrong. That's not going to serve the public interest. And I am concerned that if draconian rules are brought in banning informal contact between the police and the media, then genuinely that the police will not necessarily be better for it, and the public will be worse for it as well.
Q. Do you
A. There are stories I've done in my career and there will be stories which other papers have done exposing things in the police which will not be volunteered out. You have to find it, you have to go and dig, you have to deal with people on a confidential basis, but if the laws or the rules are such that that is completely banned, then we have no chance.
Q. But suppose the proposition was not we're going to ban these interactions but instead we're going to require that they be recorded in the sense that there is some written record of them.
A. Yes.
Q. Not necessarily the gist of what was said, but the mere fact of their occurrence. Do you see a difficulty with that?
A. Yes, I do. I think I see a bureaucratic problem with that, which is the police have enough bureaucracy as it is. I fear that people who do act in the public interest and many of the people I've dealt with have over the years, they do act in the public interest talking to me will be persecuted for doing that, even if there's no record of actually what was said. That is my concern. These types of rules could be abused by senior officers looking to look after their own careers. Controlling information flow. There has to be some sort of balance, in my opinion, some sort of balance, some sort of safeguard put in, because if every contact with the media is examined to the nth degree and people are scared of dealing with the media, it could lead to a corruption of a different type. LORD JUSTICE LEVESON The same could be said the other way round. If it's a complete free-for-all, then that might undermine the public interest
A. Yes, yes. LORD JUSTICE LEVESON because of what goes in the newspapers. They have to find the right balance.
A. Absolutely, that's what I said. The right balance has to be achieved and that's you know, I've been thinking about that these last couple of weeks. LORD JUSTICE LEVESON And?
A. I haven't come to a decision. I can't your Honour, it's difficult, it's difficult. There has to has to be change and there will be change, obviously, but actually I am concerned about those safeguards so you don't have journalists being persecuted for carrying out their legitimate enquiries and police officers helping journalists when necessary or when appropriate. LORD JUSTICE LEVESON Well, necessary and appropriate are
A. There's a judgment issue, also. LORD JUSTICE LEVESON Correct.
A. Yes. LORD JUSTICE LEVESON But in relation to leaks there have undeniably been serious leaks which it seems, looking at the papers, are not always in the public interest by any stretch of the imagination. That then you've not merely leak enquiries are very, very difficult, but you've not merely got to one of the reasons you need to find out who's doing what is to protect those who haven't done anything, and yet who all will fall under suspicion.
A. Yes, I understand, yes. LORD JUSTICE LEVESON So it's to acquit the innocent just as much, if not more, than to find out who is responsible.
A. Yes, yes. LORD JUSTICE LEVESON A very good example of the issue we could talk about was that article that you wrote about the new evidence in the Lawrence case, which actually gave you the decision, the pen to decide whether it's in the public interest to say this, and there wasn't quite the dialogue
A. Yes, yes. LORD JUSTICE LEVESON that got for you from Mr Driscoll, "Actually, there are these problems about this", and it's a good example because you were both on the same side in this case. It's not as though you were trying to expose anything that the police weren't doing, and it's not as though you wanted the police to do something different to that which they were doing, so you were both on the same side and that's where it becomes very, very difficult.
A. It does. LORD JUSTICE LEVESON Of course I appreciate you don't necessarily know and he doesn't tell you because he wants to keep the whole thing tight, and therefore we have to think of a way that provides a mechanism
A. Yes. LORD JUSTICE LEVESON for safe discussion which works both for the public interest
A. Yes. LORD JUSTICE LEVESON respects freedom of expression
A. Yes. LORD JUSTICE LEVESON but respects the integrity of investigations.
A. Absolutely. LORD JUSTICE LEVESON Now that's the trick and if you think of a solution
A. Can I we will be putting in a submission at the end of this Inquiry, of this part of this module, so I will think very carefully. LORD JUSTICE LEVESON Thank you.
A. Hopefully I'll come up with something. LORD JUSTICE LEVESON Thank you. You've heard me ask everybody from all their different fields.
A. Yes. LORD JUSTICE LEVESON I am very conscious this is your world, not mine.
A. Yes. LORD JUSTICE LEVESON But it's inevitable that you will look at it through your spectacles, a police officer will look at it through his spectacles, and I'm trying to combine the various interests.
A. Thank you. MR JAY Yes, those are all my questions.
A. Thank you. LORD JUSTICE LEVESON Is there anything you want to add to what you've previously said?
A. No, I just hope that when you come in when you consider your report and write it up, that, you know, the importance of public interest and investigative journalism is considered. I'm sure it will be, but, you know, it's the Metropolitan Police, huge public body, 50,000 staff, just one force, it's like journalists, it's not above scrutiny. LORD JUSTICE LEVESON I entirely endorse the importance of investigative journalists.
A. Mm. LORD JUSTICE LEVESON And of investigative journalism and the great value for good that it can have. And you are there to hold the police to account. But I will ask you, as I asked some of your colleagues yesterday: who is holding you to account?
A. Of course. Absolutely. LORD JUSTICE LEVESON Thank you. MR JAY Thank you, Mr Wright.
A. Okay. LORD JUSTICE LEVESON Well, shall we have a few minutes now before Mr Brett or do you just want to crack on? MR JAY Possibly a few minutes now. (3.02 pm) (A short break) (3.12 pm) LORD JUSTICE LEVESON Yes. MR JAY The next witness is Mr Brett, please. LORD JUSTICE LEVESON Thank you. MR ALASTAIR JOHN BRETT (sworn) Questions by MR JAY MR JAY First of all, your full name, please?
A. Alastair John Brett.
Q. 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?
A. It is.
Q. 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?
A. That's correct, yes.
Q. You tell us that you worked under eleven editors, you've plainly had vast experience in the area of media law generally?
A. Yes, I think so.
Q. 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?
A. Yes.
Q. 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. A duty of confidentiality. The journalist would say, "Can I talk to you in confidence, Alastair?"
Q. What would be, though, the limits of that duty? Presumably duties owed to the court would be higher duties, would they not?
A. Yes, that would be right. LORD JUSTICE LEVESON Neither is quite the same as a privileged situation, is it?
A. A privileged situation would obviously be where you're giving advice of some kind or other but that presupposes LORD JUSTICE LEVESON He's just about to ask you for some.
A. Yes, he is. LORD JUSTICE LEVESON So would you consider that privileged?
A. I probably would regard it as privileged, yes. Privileged and confidential. MR JAY So it attracts, in your view, legal advice privilege, have I correctly understood it?
A. Yes. LORD JUSTICE LEVESON But he's not your client.
A. 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. LORD JUSTICE LEVESON 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?
A. In your current situation, no. But even before. LORD JUSTICE LEVESON Or even before, yes.
A. If I'm approached by somebody for legal advice, and I was, I think I would regard that as covered by legal professional privilege. LORD JUSTICE LEVESON I'll have to think about that.
A. It raises all sorts of interesting questions about in-house lawyers. LORD JUSTICE LEVESON Indeed. MR JAY 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
A. That's precisely the word I was going to use: a difficult situation.
Q. 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?
A. That's precisely when I have a ghastly, horrible, difficult situation in front of me.
Q. Let's see whether it has any bearing on subsequent events.
A. Okay.
Q. 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?
A. That's correct, yes.
Q. 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?
A. Precisely.
Q. 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?
A. I knew there was a public interest defence to Section 55, and this situation could be covered by that public interest defence, yes.
Q. Had you heard of the Computer Misuse Act?
A. I hadn't at that stage.
Q. You tell us that you sought advice from libel chambers.
A. Yes.
Q. 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?
A. Yes, that's roughly the situation, yes.
Q. 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?
A. 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 LORD JUSTICE LEVESON 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
A. No, but at that stage the public interest, was it going to be in the public interest to expose NightJack? LORD JUSTICE LEVESON 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.
A. Yes, it was unethical. LORD JUSTICE LEVESON So it's unethical even if there is a public interest defence?
A. 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." LORD JUSTICE LEVESON 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?
A. 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. LORD JUSTICE LEVESON Well sorry. I'll keep quiet in a bit. If there's a defence, it's not criminal.
A. Precisely. But it's still but I you can't have journalists hacking into people's email accounts. LORD JUSTICE LEVESON I'm actually going to agree with you, but we may not have got there quite the same way. All right. MR JAY 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?
A. I think that's correct, yes.
Q. 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?
A. Yes, correct.
Q. 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?
A. Correct, yes.
Q. 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?
A. 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.
Q. 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?
A. I totally agree that it would be more difficult for a journalist who hadn't been inside the maze to get there.
Q. 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?
A. No, it wasn't.
Q. Why not?
A. 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. LORD JUSTICE LEVESON 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.
A. 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. MR JAY It is made, though, a lot easier for Mr Foster if he knows the answer, isn't it?
A. It must be.
Q. 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?
A. 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.
Q. 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?
A. 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.
Q. Let's examine the chronology. Mr Foster having, as it were, cracked the code on or about 27 May
A. 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?
Q. No, I'm talking about ascertaining his identity through publicly available sources of information.
A. Yes, that's something that
Q. 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?
A. Correct.
Q. 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?
A. Yes.
Q. And then there is a letter, which I think is page 1 of JH3, where there's the first mention of possible litigation.
A. That's correct, yes.
Q. So, contrary to your prognostication, as it were, it's clear by then that the matter could well be turning litigious; is that right?
A. That is correct, yes.
Q. 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?
A. 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.
Q. 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?
A. That's correct, yes.
Q. 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?
A. Correct.
Q. 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.
A. That's correct.
Q. Do you see that? So it's all part and parcel of the same web of events, isn't it?
A. It's all part of a series of events, yes. LORD JUSTICE LEVESON But you're using as a reason something that you yourself have done. Not you personally, but the Times.
A. Certainly Patrick had approached the Lancashire police and said, "I believe that NightJack is DC Horton", yes. MR JAY But what had happened in the chain of events
A. 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.
Q. We have a chain of events of ascertaining the identity in the first place by email hacking?
A. Yes.
Q. Then carrying out this public domain exercise
A. Yes.
Q. 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
A. Absolutely, yes.
Q. by the time we have this call.
A. That's right.
Q. 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?
A. 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.
Q. 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?
A. Unless Mr Barrow had talked to him about it.
Q. Well, Mr Harding's evidence was there had been no such discussion.
A. 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.
Q. 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?
A. Correct.
Q. Is it not, though, your duty to explain what might happen if litigation were to erupt?
A. 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.
Q. 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?
A. Obviously, yes.
Q. 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?
A. Correct, yes.
Q. 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?
A. Mr Foster had by this stage done the exercise totally legitimately. LORD JUSTICE LEVESON 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.
A. Well, my Lord, all I can do is say that when Patrick Foster told me how he'd done it legitimately, I believed him. LORD JUSTICE LEVESON Yes, I understand what you're saying.
A. Yes. LORD JUSTICE LEVESON But we can't lose sight of reality in all this, can we?
A. No. No, we certainly can't, no. MR JAY 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?
A. 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.
Q. 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?
A. Sorry, whose
Q. That's what you say in your witness statement, that you were giving consideration of
A. 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.
Q. 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?
A. 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." LORD JUSTICE LEVESON If you look at paragraph 12, is Mr Jay right? Just of your statement.
A. 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". MR JAY The duty of confidence you refer to, that in any event would be trumped by your higher duty to the court, wouldn't it?
A. Yes, it would, yes.
Q. 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?
A. My duty to the court was obviously not to mislead the court.
Q. Mm.
A. 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.
Q. 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?
A. 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.
Q. You explain in your statement that you didn't obtain either junior or leading counsel's advice on this particular point?
A. No, I didn't. LORD JUSTICE LEVESON 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"?
A. 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.
Q. 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?
A. That's correct, yes.
Q. 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?
A. Yes.
Q. 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?
A. Second
Q. Well, there's the first email hacking back in Oxford years before?
A. That's right.
Q. And then there's the one which happened only a couple of weeks before this email of DC Horton's email account.
A. Yes.
Q. So the two occasions. So we're only looking at the first occasion, we're not looking at the second, are we?
A. 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. LORD JUSTICE LEVESON He wasn't a criminal lawyer, presumably, a libel lawyer?
A. No, he wasn't, he was a libel lawyer. LORD JUSTICE LEVESON 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.
A. I'm being oblique to an extent which is embarrassing, yes, with Mr Barnes. MR JAY Because, to be clear, Mr Barnes did not know about Mr Foster's email hacking of DC Horton's account, did he?
A. No, he didn't, no.
Q. 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?
A. No, I'm not.
Q. 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?
A. 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.
Q. 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.
A. No, no, no, no. Yes, he didn't know.
Q. 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?
A. That's correct.
Q. 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?
A. Correct, yes.
Q. 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?
A. 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."
Q. We know that Antony didn't get it, so there must have been a conversation along those lines?
A. Mm.
Q. 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?
A. Correct, yes.
Q. 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?
A. That's correct, yes.
Q. So they were smelling a rat and they were smelling the right rat, weren't they?
A. They were certainly smelling a rat, yes.
Q. 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?
A. 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."
Q. 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?
A. 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. LORD JUSTICE LEVESON 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.
A. 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. LORD JUSTICE LEVESON 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."
A. Yes, he never talked to me about but a journalist wouldn't necessarily talk to me about a confidential source. LORD JUSTICE LEVESON No, of course he wouldn't, but presumably you read this statement
A. Yes, I did. LORD JUSTICE LEVESON to make sure that it wasn't misleading.
A. 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. MR JAY 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?
A. That's correct, I advised him to not engage on that point.
Q. Why not?
A. Because he would obviously have to say LORD JUSTICE LEVESON The truth?
A. He'd have to tell the truth, precisely. MR JAY I just wonder, if it was all irrelevant, what was the harm of him telling the truth?
A. 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.
Q. 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?
A. Yes.
Q. But by 1 or 2 June, you were still thinking he might have a public interest defence?
A. Yes.
Q. 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?
A. That would have been a possibility, yes.
Q. 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?
A. 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."
Q. 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."
A. That's correct, yes.
Q. 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.
A. That's correct, yes.
Q. 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?
A. Yes, it is.
Q. It's still part of the history, isn't it?
A. 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. LORD JUSTICE LEVESON It's not entirely baseless because actually he knew how to hack into somebody's email.
A. "Baseless" was not the best word to use. MR JAY But even in relation to the Oxford issue, you were aware that Mr Foster had hacked into an email account, weren't you?
A. I knew he hacked into an email account, yes.
Q. 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?
A. 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.
Q. Because he'd only done it once?
A. That's what he told me.
Q. But you're even denying that he'd done it once, aren't you, in this letter?
A. 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.
Q. 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?
A. Yes, I clearly knew that, yes.
Q. 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?
A. I don't think I should have used the word "baseless", with hindsight.
Q. 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?
A. He clearly had recently hacked, yes.
Q. 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?
A. 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.
Q. 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.
A. 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 LORD JUSTICE LEVESON That's the point. MR JAY That's the point, then.
A. Well
Q. 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?
A. 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.
Q. 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?
A. We might, but it still begs the question how on earth you get to the point of saying DC Horton is NightJack.
Q. Well, that
A. Patrick, by this stage, had also been able to see that there had been a Facebook conversation between Patrick and LORD JUSTICE LEVESON 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?
A. Yes, I do. LORD JUSTICE LEVESON Yes. MR JAY 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?
A. 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. LORD JUSTICE LEVESON 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.
A. Well, Hugh Tomlinson accepted that at the LORD JUSTICE LEVESON Of course he did because he's seen the
A. Witness statement. LORD JUSTICE LEVESON 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.
A. 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. LORD JUSTICE LEVESON 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.
A. Sorry, I don't have the right page. LORD JUSTICE LEVESON 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?
A. Yes, it certainly does suggest LORD JUSTICE LEVESON 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?
A. It certainly suggests he has done precisely that, yes. LORD JUSTICE LEVESON And that's how he's gone about it?
A. Yes. LORD JUSTICE LEVESON That's not accurate, is it? (Pause).
A. It is not entirely accurate, no. LORD JUSTICE LEVESON 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?
A. My Lord, we're being fantastically precise. LORD JUSTICE LEVESON Oh, I am being precise because this is a statement being submitted to a court, Mr Brett.
A. Yes. LORD JUSTICE LEVESON Would you not want me to be precise?
A. No, of course I'd want you to be precise. It's not the full story. LORD JUSTICE LEVESON 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?
A. It certainly doesn't give the full story. LORD JUSTICE LEVESON Well, there are two or three other examples, but I've had enough. MR JAY Were you fearful, Mr Brett, that had the court been given the full story, the outcome might have been different?
A. No, because, as I keep on saying, he'd done it legitimately.
Q. 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?
A. 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."
Q. Yes.
A. I told him, "Don't engage on that, just keep it simple, say how you did it legitimately."
Q. 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?
A. Patrick Foster might have been prosecuted. David Eady's analysis of the legal issues should have remained exactly the same, as it turned out LORD JUSTICE LEVESON Well, you won on the first issue and you also won on the second issue as an alternative.
A. Yes. LORD JUSTICE LEVESON You might not have won on the second issue had he known the truth.
A. 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. LORD JUSTICE LEVESON Yes, but he had to balance then the way in which you'd got the story.
A. That is correct, yes. MR JAY Your witness statement
A. But can I just say that you could I mean, that was the balancing exercise and he had got it legitimately. MR JAY 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?
A. That's right, yes.
Q. 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?
A. 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.
Q. 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. LORD JUSTICE LEVESON 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.
A. That's right. LORD JUSTICE LEVESON That would at least have the benefit of being frank.
A. 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. LORD JUSTICE LEVESON But you could have gone to him. MR JAY He was your barrister.
A. 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.
Q. Even more reason, Mr Brett, to go to Mr White and ask him for the answer.
A. That was
Q. Because he was the barrister actually in your case. It wasn't as if you had to trouble him LORD JUSTICE LEVESON 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.
A. My Lord, I all of what you've just said I could have done. I wish I had done. LORD JUSTICE LEVESON I'm sure that's right. MR JAY 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?
A. 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. LORD JUSTICE LEVESON Actually, doesn't that make it worse? I'll tell you why I ask that question.
A. Mm. LORD JUSTICE LEVESON 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?
A. 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. LORD JUSTICE LEVESON No, I'm not suggesting you're condoning what Mr Foster had done at all.
A. No. LORD JUSTICE LEVESON 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?
A. That is precisely what your Inquiry is looking into. LORD JUSTICE LEVESON That's the point.
A. I know. LORD JUSTICE LEVESON That's why this issue has achieved a significance
A. Yes. LORD JUSTICE LEVESON 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.
A. 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. LORD JUSTICE LEVESON Yes.
A. 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. LORD JUSTICE LEVESON I have no doubt about that. I quite understand. But equally, you understand why I'm concerned about it.
A. Of course I do. MR JAY I think that's as far as I need go. LORD JUSTICE LEVESON 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?
A. Yes. LORD JUSTICE LEVESON 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.
A. 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. LORD JUSTICE LEVESON It's obviously a very important part of what I have to do. Thank you very much, Mr Brett. Right. Is that Monday? MR JAY It is Monday, yes. LORD JUSTICE LEVESON Very good. Thank you very much. (4.28 pm) (The hearing adjourned until 10 o'clock on Monday, 19 March 2012)


Gave a statement at the hearing on 15 March 2012 (PM) ; and submitted 2 pieces of evidence
Gave statements at the hearings on 15 March 2012 (AM) and 15 March 2012 (PM) ; and submitted 2 pieces of evidence


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