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Thursday, 1 March 2012

I have moved!

My new website is at www.jackofkent.com.

Come and join me at the new site, and see my first post there for more news on the move.

Wednesday, 29 February 2012

Banksy on Advertising

I saw this earlier today...

People are taking the piss out of you everyday. They butt into your life, take a cheap shot at you and then disappear. They leer at you from tall buildings and make you feel small. They make flippant comments from buses that imply you’re not sexy enough and that all the fun is happening somewhere else. They are on TV making your girlfriend feel inadequate. They have access to the most sophisticated technology the world has ever seen and they bully you with it. They are The Advertisers and they are laughing at you.

You, however, are forbidden to touch them. Trademarks, intellectual property rights and copyright law mean advertisers can say what they like wherever they like with total impunity.

Fuck that. Any advert in a public space that gives you no choice whether you see it or not is yours. It’s yours to take, re-arrange and re-use. You can do whatever you like with it. Asking for permission is like asking to keep a rock someone just threw at your head.

You owe the companies nothing. Less than nothing, you especially don’t owe them any courtesy. They owe you. They have re-arranged the world to put themselves in front of you. They never asked for your permission, don’t even start asking for theirs.

- Banksy



Hat-tip Maria Wolters.

Monday, 13 February 2012

Thoughts on the present discontents.

Every so often the balance of power within a polity changes.

In the United Kingdom the ultimate power supposedly lies with the Crown-in-Parliament.

But in history, the strongest power has shifted: at times it has been the established church, or the landed gentry, or the trade unions.

More recently it has been the popular media.


What appears to be happening now is that those entities which were cowered by or checked by the mainstream media are reasserting themselves.

Parliament and a judicial inquiry are both showing the advantage of absolute privilege: the ability to allow things to be said which otherwise may not be said because of fear of what the media will do.

The police are now enforcing the law rather than being inhibited by or being over-familiar with the tabloid press.

In addition, social media means that no longer can established titles and well-positioned editors and journalists dominate the channels of communication.


Electronic flows of information, coupled with the above assertions of power beyond the mainstream media's control, are creating a new polity. There are new power relationships. Old media may never be able to return to their old tricks; and they may never have that untouchable quality again.

The idea of a mere media professional - an editor or reporter - being a wielder of genuine political power may soon seem as quaint as Thomas Becket or Red Robbo being the most powerful commoner in the land.

Some new elite will dominate, and they no doubt will in turn abuse their power and will eventually be checked. Such is the true nature of political change.

And then some will be nostalgic for the days when the tabloids held political sway in the land, and they will pine for a golden age that never was.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Sunday, 12 February 2012

The "TwitterJokeTrial" - guest post by Fiona Hanley

This is a guest post by my Dublin-based friend, the art director and graphic designer Fiona Hanley.


If it were not for the post 9/11 security climate then Paul Chambers may never have tweeted what he did.

Frustrated at not being able to travel, his was perhaps a minor light-hearted act of rebellion at the expense of a necessarily paranoid security system which assumes travellers are guilty until proven innocent.

We must decant cosmetics and hand over belts, coats and shoes. If told to stand aside, we hold out our arms, part our legs and consent to getting patted down by a stranger in front of strangers or consent to the same for our children until security is satisfied that we pose no threat.

Not much fun really, but the general consensus is that in this exceptional instance public good trumps individual civil liberty.


Paul Chambers’ tweet was a direct riff on this.

Of course it was a joke.

Who knew? Everybody.

The police knew it was a joke, the airport knew it was a joke, the courts knew and Twitter knew.

Yet he and his counsel are placed in the ludicrous position of trying to convince the courts that it was a joke which posed no threat to anyone while the courts are in the ludicrous position of forensically examining said joke to measure out the exact nature and potential for misinterpretation.

Never in the two years of this well-documented case has anybody said that they didn’t know it was a joke.

In my opinion, only someone with a condition like Autism Spectrum Disorder would be threatened by that tweet. A difficulty interpreting words any way other than literally, without regard to tone, context or sarcasm is a classic and debilitating trait of ASD.


But somebody decided Chambers broke the law and so the logic of the tweet has been forensically examined: how does threatening to blow up a closed airport make it open any quicker?

Why would a genuine terrorist send an open tweet from his non-anonymous account?

But really, there should be no need for any of that.

There should be no need to ‘prove’ it was a joke.

Everyone just instinctively, instantly, intuitively knew. How? We just did.


How do we know Beethoven’s Seventh is beautiful? We just do.

How do we know The Cure’s Lovecats is pretty catchy? We just do.

These are subjective value judgements which are so commonplace, so easily and universally understood that they require no explanation or justification.

Imagine in some bizarre alternate universe having to stand before a judge and explain exactly why the Seventh Symphony is beautiful.

Imagine if this masterpiece was legally deemed to be not beautiful if one was unable to sufficiently convince the courts of its quality.

It is the stuff of metaphysics.

Of course Beethoven or The Cure mightn’t be everyone’s thing and that’s fine, it’s all subjective, but you can see what other people are on about.

You mightn’t find Chambers’ joke particularly funny, it was no comic masterpiece, but you knew nonetheless it was a joke.

Following the progress of the Twitter Joke trial on Wednesday was frustrating because it felt like the intrinsic human capacity for subjectivity itself was being put on trial by a legal system which is apparently only equipped to deal in the objective.


In Zen and the Art of Motorcycle Maintenence the narrator Phaedrus becomes preoccupied with the philosophical examination of the nature of quality.

Throughout a motorcycle journey with his young son he muses obsessively on an examination of how and why people make subjective value judgements. It is a fantastic read, profound and powerful, but throughout the novel I kept rooting for the tormented hero to just relax and accept that sometimes we just know stuff without needing to know how we know. I’m sure Paul, David and the rest of the legal team could sympathise with unlucky Phaedrus whose analytical reflections eventually drive him insane.


Carl Gardner wrote an excellent blog post following the hearing.

It seems the mens rea argument, ie that for a crime to take place there needs to be intention to commit the crime, didn’t gain traction with the judges.

I’m confused as to why it wouldn’t be taken as a given that there was no mens rea.

Personally I’m even confused about the actus reus aspect of the case, ie that a crime took place at all.

Did a crime take place if no one took it seriously, if no one felt menaced by the tweet, if no neurotypical person could reasonably not know it was a joke.

I tweeted something about being confused by the prosecution’s logic.

Actually hands up, I wasn’t really confused, just sarcastic because hey, let’s make hay.

We may only have a week and a bit left to be sarcastic on Twitter before Justice blows sarcasm sky high.

Oh hang on wait, that’s sarcasm again.

Better scratch that last bit.

We can’t be too careful these days.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Saturday, 11 February 2012

Lord Carey's "Terrifying Prospect"

The Guardian is carrying some quotes from Lord Carey, former archbishop of Canterbury, about the recent High Court ruling that councils do not have the power to formally impose prayers as part of official business.

Carey says the ruling will have "incredibly far-reaching consequences" and he gives the example: "Will the next step be scrapping the prayers which mark the start of each day in parliament?"

I am not sure what counts as a "far-reaching consequence" - let alone an "incredibly far-reaching consequence" - but it is difficult to see prayers in parliament (used often by MPs just to reserve seats) as a consequence worthy of even an adjective or an adverb, let alone the ones he chooses.


The former archbishop goes on.

"These legal rulings may also mean army chaplains could no longer serve, and that the coronation oath, in which the King or Queen pledges to maintain the laws of God and the lessons contained in the gospels, would need to be abolished. This is a truly terrifying prospect."

Well, this is a rather heady interpretation of a judgment on the scope of the Local Government Act.

It is, of course, legal nonsense.

There is no such prospect from this ruling, still less a "terrifying" - indeed, "truly terrifying" - one.

The former archbishop is simply using words which he cannot mean or does not understand.


"It is clear that these sensitive matters can no longer be left in the hands of judges."

So that's a former archbishop coming out against the Rule of Law then.


This is all hysterical silliness from someone who - worryingly - remains one of this country's legislators.

Prayers should have no part in official civic business, just as religious oaths should have no part in the practice of law.

Law and public policy should be free from the formal trappings of religion.

Perhaps one day soon they will be.



COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

No coroner's inquest for Dr David Kelly

The High Court has recently rejected an attempt for there to be a coroner's inquest into the death of Dr David Kelly in July 2003.

I think this is unfortunate.

Whilst one can have no serious doubt - on the evidence that is available - that Dr Kelly's death was suicide, there does remain dissatisfaction as to the the conduct and outcome of the Hutton Inquiry.

In particular, in those innocent pre-Leveson days, Lord Hutton and his team did not have the benefit of an understanding of the methods of the press which may perhaps have assisted in building up a more complete picture of how Dr Kelly was outed and the immediate events leading up to his death. (We now know what the mainstream media were capable of doing from the death of Milly Dowler the previous year - 2002.)

Given this, the lack of a coroner's inquest does rather seem a lost opportunity for a more detailed picture to emerge with witnesses under oath or affirmation.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Sunday, 22 January 2012

A NightJack - and computer hacking - timeline

I set out below a chronology of the NightJack case and computer hacking by newspapers more widely.

Please suggest further events and/or links, as it is intended that this post will be updated - significant additions will be noted in the comments at the end of the post.

You will notice that I do not mention the journalist by name (unless quoting from a document). There is no reason for this to be a witch-hunt. The journalist admitted the computer hacking incident to his managers, and he was disciplined for it. The far more important issue is about what his managers did or did not do with this information. As far as I can I tell, they knew before publication, decided to publish, decided to oppose an injunction, did not tell the High Court or the defendant's lawyers, and told the Leveson inquiry as little as possible.

They also have never apologised to the blogger.

You will see I also do not mention the blogger's real name (again, unless quoting from a document). However, I regard "Jack Night", the author of the NightJack blog, as the best writer the blogging medium has so far produced (even if he and I have - ahem - different views on many policing and social issues). The loss of his blog was needless and unfortunate. He was one of the two kind judges when Jack of Kent was shortlisted for the Orwell Prize. I hope the below helps get him the apology he greatly deserves.



The NightJack posts are archived here - hat-tip to SaltedSlug for putting the archive together.


Key

Judgment - the judgment of the High Court in The Author of a Blog v Times Newspapers Limited dated 16 June 2009
PF - the witness statement of the journalist dated 2 June 2009


22 April 2009

"NightJack" awarded 2009 George Orwell Prize for blogging.

This is the first year that the prize is awarded for blogging.

This the acceptance speech, read out by an old friend.

When I started the Night Jack blog back in February last year, I was standing on the shoulders of others. I heard about a Police blog called Inspector Gadget at work. I read it and I agreed with it. My comments on there started to get so long that one evening I sat down with my laptop and started a blog of my own.

As I wrote more posts I found that people were coming to my site to read and leave comments. Arguments started, some of them even came close to being reasoned debates. Then people in other blogs started linking to some of my posts and saying they were worth reading. As the readership headed over 1,000 a day, I started getting the occasional e-mail from the news media asking for an interview. I even got the obligatory Police blogging book offer. I am not now, nor have I ever been, a media cop.

If anyone had told me then that I was going to make the short list for the Orwell Prize I would have asked them to stop being silly. It is still a bit of a nosebleed experience finding myself in the company of so many other blogs that I admire and follow.

I believe that as bloggers we are mostly short levers in the political world but I would like to thank the Orwell Prize for noticing us and for choosing to do so in a year that has seen political blogging become a more important part of the wider political process.

Anyway, as you may know, I am an anonymous blogger and as I do not feel able to accept the prize openly and in person, I have decided to donate any winnings to the Police Dependents’ Trust. This is a charity that assists the families of colleagues who have died in the execution of their duties.

Enjoy your night. Thanks again. Jack Night.



Reported at the Guardian here.

At some point after the award the journalist "resolved to try and uncover the identity of its author, for the purpose of a news story" (PF para 5).


21 May 2009

The Independent publishes an article confirming that the author of the NightJack blog is a serving police officer but that he does not wish to be identified.


27 May 2009

A Times journalist telephones the blogger to put to him allegation that he is author of "NightJack" intending to publish allegation next day. (PF para 52)

The blogger's lawyers contact the Times and a decision is made not to publish the story in the next day's edition (PF para 56).


Two things are currently not clear in respect of the intended original publication date of 28 May 2009: (a) whether the editor/managers knew at that point hacking had took place and (b) how far the journalist's investigation had got to by this point. None of the print-offs exhibited to the witness statement are dated before 28 May 2009, though that - of course - does not mean that the searches had not occurred by then. Unfortunately, the PF witness statement does not date when the searches were made.


28 May 2009

Date of some print-offs of the NightJack blog in the exhibits to the PF witness sttaement.


29 May 2009

The journalist telephones Monday Books (publishers) in an attempt to obtain evidence that people knew of identity not bound by confidentiality(PF para 1(b)(ii)).

Date of further print-offs of the NightJack blog in the exhibits to the PF witness statement.


1 June 2009

Date of the "Factiva" (electronic news archive) search print-offs in the exhibits to the PF witness statement linking real-life cases to NightJack posts. (This does not mean the searches had not taken place before 1 June 2009, just that they had not been printed off.)

Date of the print-offs from various Ju-Jitsu sites featuring blogger's real name. (Again, date of print-off not necessarily same as date of discovery.)


2 June 2009

Date of the PF witness statement (PF, page 1)


4 June 2009

Private hearing by Sir David Eady of application for injunction (judgment, para 1)

The defence and the High Court are not told that the journalist's investigation included the hacking of the blogger's email.

The defence is forced to concede that the case be decided on the basis that there had been no breach of privacy rights of the blogger (judgment, para 3).


16 June 2009

The judgment is handed down.

The injunction application by the blogger fails.

The judge decides, on the basis of the evidence put before him, that the blogger had no expectation of privacy (judgment, para 33).


17 June 2009

The Times publishes identity of the author of NightJack

The Times later admit they were aware of the hacking at the time of publication.

Reaction to publication:
Jean Seaton (Director of the Orwell Prize)
Graeme Archer (who was to win the same blogging prize in 2011)
Carl Gardner (leading legal blogger at "Head of Legal")


At some point the journalist is disciplined for the hack and receives a formal warning.

The blogger faced disciplinary action and possible dismissal, but is given a written warning.


Then nothing for two years...

...and the phone hacking scandal erupts.



10 June 2011

The Metropolitan Police establish a team to look into computer hacking. This is called Operation Tuleta (Wikipedia page).


11 July 2011

The highly respected Graham Cluley blogs about computer hacking concerns at the Sunday Times (but not the Times). This is also picked up at The Register.


13 July 2011

The Leveson Inquiry is announced.


18 July 2011

Lord Grabiner QC is appointed chairman of a new management and standards committee set up by News Corporation.


19 July 2011

Department of Culture, Media and Sport select committee question Rupert and James Murdoch. Tom Watson mentions allegations of computer hacking at other titles.

Q207 Mr Watson: Are you aware that there are other forms of illicit surveillance being used by private investigators, which were used by News International?

Rupert Murdoch: Other forms of?

Q208 Mr Watson: Illicit surveillance. Computer hacking, tracking on cars.

Rupert Murdoch: No. I think all news organisations have used private detectives, and do so in their investigations from time to time, but not illegally.

Q209 Mr Watson: If it can be shown to you that private investigators working for newspapers in News International used other forms of illicit surveillance like computer hacking, would you immediately introduce another investigation?

Rupert Murdoch: That would be up to the police, but we would certainly work with the police. If they wanted us to do it, we would do it. If they wanted to do it, they would do it.



14 October 2011

Date of first witness statement of Thomas Mockridge, CEO of News International, to the Leveson Inquiry.


20. Have you, or The Times, The Sunday Times, The Sun or The News of the World (to the best of your knowledge)ever used or commissioned anyone who used "computer hacking" in order to source stories, or for any other reason?

20.1 As with my answer to question 12 above, I shall restrict my response to this question to my knowledge of The Times, The Sunday Times and The Sun.

20.2 Neither I nor, to the best of my knowledge, The Sunday Times or The Sun has ever used or commissioned anyone who used "computer hacking" in order to source stories or for any other reason. In relation to The Times, I am aware of an incident in 2009 where there was a suspicion that a reporter on The Times might have gained unauthorised access to a computer, although the reporter in question denied it. I understand that that person was given a formal written warning as a result and that they were subsequently dismissed following an unrelated incident.



Date of witness statement of Times editor James Harding to the Leveson Inquiry.

The Times has never used or commissioned anyone who used computer hacking to source stories. There was an incident where the newsroom was concerned that a reporter had gained unauthorised access to an email account. When it was brought to my attention, the joumalist faced disciplinary action. The reporter believed he was seeking to gain information in the public interest but we took the view he had fallen short of what was expected of a Times journalist. He was issued with a formal written warning for professional misconduct.


Date of interim Director of Legal Affairs at NI Group Limited Simon Toms' witness statement to the Leveson Inquiry.


Explain whether you, or The Times, The Sunday Times, The Sun or The News of the World (to the best of your knowledge) ever used or commissioned anyone who used ’computer hacking’ in order to source stories, or for any reason.

I am not aware that any NI title has ever used or commissioned anyone who used "computer hacking" in order to source stories. I have been made aware of one instance on The Times in 2009 which I understand may have involved a journalist attempting to access information in this way. However, I also understand that this was an act of the journalist and was not authorised by TNL. As such, I understand it resulted in the journalist concerned being disciplined.



10 November 2011

Over a month after the above witness statements are submitted to the Leveson Inquiry, James Murdoch is asked about computer hacking at the DCMS select committee. It is clear he either does not know of or is careful not mention the incident already described in the witness statements already submitted to the Leveson Inquiry.

Computer hacking is first mentioned in general:

Q1546 Mr Watson: There are allegations of phone-hacking, computer-hacking, conspiring to pervert the course of justice and perjury facing this company and all this happened without your knowledge.

James Murdoch: As I have said to you, Mr Watson, and to this Committee on a number
of occasions, it is a matter of great regret that things went wrong at the News of the World in 2006. The company didn’t come to grips with those issues fast enough. We all recognise that.

I have also acknowledged that evidence to this Committee was given without full possession of the facts in the past and that is something that I am very sorry for. What I can tell you, though, is that when evidence came to light and when we finally achieved the transparency that is appropriate, we have acted, and the company has acted, with great zeal and diligence, to get to the bottom of issues, to improve the processes to make sure they don’t happen again, and to make sure that our co-operation with the police, with this Committee and the like is such that we can bring any wrongdoers, if they are proven to be so, to account.


And then in more depth (I have added emphasis):

Q1670 Mr Watson: [...]Can you let me know whether the company admitted liability to e-mail hacks during any of the settled civil cases? I am thinking of Taylor, Miller or Clifford.

James Murdoch: I do not believe so. I am not aware of any of that.


Q1671 Mr Watson: If it is subsequently found, could you go back and let us know if
that’s the case and write to us if you did accept liability? You’ve got some lawyers with you.

James Murdoch: I will consult with counsel about that to hopefully clarify those things, but I am not aware of any of the computer hacking that you have talked about in the past.

Mr Watson: Your lawyers behind you might be able to let you know whether that’s a
yes or a no.

James Murdoch: Would you like me to talk to them now, or can I write to you at some
point in the future?

Mr Watson: Yes, if you just ask them now. We’ve got a bit of time. Yes or no.

James Murdoch: They would like to get back to us. They are not aware.


Q1672 Mr Watson: Okay. At the News Corp AGM a few weeks ago, board director Viet Dinh told me that he would investigate allegations of computer hacking. Has he
discussed that with you?

James Murdoch: No. Mr Dinh has oversight authority at a board level for the work that
the management and standards committee is doing, and I would understand that it’s on the agenda for the management and standards committee and is being pursued with vigour.


Q1673 Mr Watson: Are you aware that former Army intelligence officer Ian Hurst has
now had it confirmed that he is a victim of computer hacking?

James Murdoch: No, I am not aware of that.


Q1674 Mr Watson: And that 16 others associated with him have had their e-mails
illicitly read?

James Murdoch: No.

Chair: Tom, I am advised that you are straying into areas that could relate to the police investigations.



1 December 2011

The law firm representing News Corporation’s Management and Standards Committe write to the Select Committee, and include information on the email interceptions mentioned in the exchange between Watson and Murdoch:

You have asked about the admission of liability for the interception of emails in the Taylor, Miller and Clifford cases. The MSC understands that neither Mr Taylor nor Mr Clifford made allegations that there had been e-mail hacking. Ms Miller did make a late amendment to her claim to allege e-mail hacking. This is a technical legal matter but the MSC has been advised that the order recording the settlement and the statement made in open court did not include any admission in relation to that late amendment.

16 December 2011

Thomas Mockridge, CEO of News International provides a correction to his earliar witness statement

At paragraph 20.2 of my first witness statement of referred to a reporter at The Times who might have gained unauthorised access to a computer in 2009. At the date of my first witness statement, it was my understanding that the reporter in question had denied gaining such access. Following further enquiries, I now understand that the reporter in fact admitted the conduct during disciplinary proceedings, although he claimed that he was acting in the public interest. The journalist was disciplined as result, he was later dismissed from the business for an unrelated matter.


It is interesting that this correction was issued. It may have been that there was a simple mistake. Or it could mean that Thomas Mockridge had not been provided with full information. But by December 2011 the mistake had been noticed and that "further inquiries" had been made into the the hacking of the #NightJack account at a senior level at News International.


9 January 2012

The witness statement of Simon Toms is published on the Leveson site.


10 January 2012

The Press Gazette notice the reference to computer hacking and publish a brief post. It mentions the date of the incident as 2009.


I see the Press Gazette post and wonder whether the 2009 incident could relate to the outing of NightJack.

16 January 2012

I do a quick post drawing attention to the evidence and the Press Gazette post. However, at this stage I have no idea who the journalist was or even if it related to a published story. (I update that post when the other witness statements become available.)


17 January 2012

The witness statements of Tom Mockridge and James Harding are published on the Leveson site.

Taking the four witness statements together it is evident:

- the incident was in 2009;
- the reporter was male ("he");
- the computer hacking was in the form of unauthorised access to an email account;
- a disciplinary process was commenced after concerns from the newsroom;
- the reporter admitted the unauthorised access during the disciplinary process;
- the incident was held to be "professional misconduct" and the reporter was disciplined;
and
- the reporter is no longer with the business having been dismissed on an unrelated matter.

I add the above analysis to my earlier post.


Paul Waugh at Politics Home (who had been deeply sceptical of the Times story in 2009) makes a possible link with NightJack case. The Times admission is also noticed by Fleet Street Blues.

I do a post at New Statesman asking whether the Times has used the hacking in a published story. I email same question to the Times but get no reply.

In the meantime, Tom Mockridge and James Harding had given oral evidence at the Leveson inquiry.

Mockridge is asked specifically about the computer hacking incident:

Q. [...] Can I ask you to clarify paragraph 5. This is the access to a computer by a reporter at the Times. Are we talking about an internal computer or are we talking about a third party's computer?

A. I believe it was a third-party computer.


He is also asked about issues wider than phone hacking:

Q. Are there any specific issues which have caused you concern since you took over as chief executive officer outside the ambit of phone hacking, issues which you've
discovered which you would like to draw to the Inquiry's attention?

A. I don't think there's anything I would draw to the Inquiry's attention separately from the investigations which are progressing and which I think in time results of which will be notified to the authority ...to the Inquiry.

Q. This is the internal investigation --

A. The internal investigation.

LORD JUSTICE LEVESON: This is the one chaired by Lord Grabiner?

A. Correct.



However, it does not appear that Harding is asked directly about the incident.


In the evening, a source tells David Leigh at the Guardian that the admitted hacking was regarding the NightJack case. The journalist is also named. David Leigh also tweets that hacking was used in the exposure.


18 January 2012

The Times publishes the following article, which I set out in full for the purposes of reporting current events and review.


The Times and the NightJack case

The Times published a report exposing the identity of an anonymous police blogger after a journalist at the newspaper had hacked into his e-mail account.

The report in 2009 revealed the identity of the author of NightJack, a popular blog by a police officer who gave behind-the-scenes insights into frontline policing.

The Times’s decision to expose the Lancashire detective Richard Horton was widely criticised at the time but the newspaper said there was a public interest in doing so because his blog contained details that could be traced back to actual prosecutions. A High Court judge agreed that there was a public interest in naming him and overturned an injunction Mr Horton had obtained against The Times.

The e-mail hacking has come to light because James Harding, Editor of The Times, and Tom Mockridge, Chief Executive of the paper’s parent company, News International, were asked questions by the Leveson inquiry about computer hacking.

Mr Harding referred to the incident in his statement, dated October 14 last year: “The Times has never used or commissioned anyone who used computer hacking to source stories. There was an incident where the newsroom was concerned that a reporter had gained unauthorised access to an e-mail account.

“When it was brought to my attention, the journalist faced disciplinary action. The reporter believed he was seeking to gain information in the public interest but we took the view he had fallen short of what was expected of a Times journalist. He was issued with a formal written warning for professional misconduct.”

The witness statement was made public after Mr Harding’s appearance at the inquiry on Tuesday.

Mr Mockridge made two witness statements, the second correcting what he had said in the first about the computer-hacking incident. His first statement, also dated October 14, said there had been a “suspicion” that a reporter from The Times “might have gained unauthorised access to a computer”. The statement added that the reporter had denied doing so but had been given a formal written warning.

However, the reporter, Patrick Foster, who has since left the paper, had in fact informed his managers before the story was published that he had, on his own initiative, hacked into Mr Horton’s e-mail account. The incident raised issues about the approval process for newsgathering at the newspaper.

The role the hacking played in Mr Foster’s investigation remains unclear. Mr Foster identified Mr Horton using a legitimate process of deduction based on sources and information publicly available on the internet.

Mr Mockridge’s second witness statement, dated December 16, said: “Following further enquiries, I now understand that the reporter in fact admitted the conduct during disciplinary proceedings, although he claimed that he was acting in the public interest. The journalist was disciplined as a result. He was later dismissed from the business for an unrelated matter.”

In his original injunction application, Mr Horton said his identity had been disclosed to The Times “in a breach of confidence”. In his ruling overturning Mr Horton’s injunction, Mr Justice Eady said that Mr Horton’s barrister “was prepared to proceed on the basis that the evidence relied upon from Mr Patrick Foster was correct; that is to say, that he had been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the internet.”

Mr Harding said: “The newspaper published the story in the strong belief that it was in the public interest even though concerns emerged about the conduct of the reporter. After the judge handed down his judgment overturning the injunction on the grounds of public interest, we published. We also took the decision to look into the reporter’s conduct and he was subsequently disciplined.”



The crucial points arising from the Times admission appeared to me to be that managers did know about the hack before publication on 17 June 2009, that they were "unclear" about the role it played in the journalist's investigation, and that the High Court and the blogger's lawyers were not told about the hacking.


19 January 2012

In another case, the High Court is told that the News of the World hacked into the emails of Christopher Shipman. Michael Silverleaf, QC, for News Group Newspapers, told the court that the company offered its "sincere apologies ... for the damage, as well as the distress caused to him by the unlawful interception of his emails and obtaining private and confidential information".

This seems to be the first formal admission by News International that computer hacking took place on any of its titles.


20 January 2012

I do a follow on post at the New Statesman establishing that senior managers at the Times knew the blogger's email account had been hacked that but did not tell the High Court.


22 January 2012

The Independent on Sunday reports that Tom Watson MP is calling for James Harding to be recalled to the Leveson Inquiry to give evidence on the computer hacking.


22 January 2012

I summarise the emerging three key questions at the New Statesman as being why the court and blogger's lawyer's were not told, why the DCMS select committee were not told in November 2011, and why the Leveson inquiry was not given fuller information.

I also call for the Times to apologise for the hacking, which it has already accepted at the internal disciplinary was misconduct and should not have happened.


23 January 2012

Tom Watson MP calls for a police investigation. Also reported in the Press Gazette.




COMMENTS MODERATION

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Monday, 16 January 2012

Computer Hacking at The Times?

Tucked away in the written evidence of News International's Interim Legal Director Simon Toms to the Leveson Inquiry was this fascinating revelation, which seems not to have been picked up by any of the mainstream media other than the Press Gazette:

Question Explain whether you, or The Times, The Sunday Times, The Sun or The News of the World (to the best of your knowledge) ever used or commissioned anyone who used ’computer hacking’ in order to source stories, or for any reason.

Answer I am not aware that any NI title has ever used or commissioned anyone who used "computer hacking" in order to source stories. I have been made aware of one instance on The Times in 2009 which I understand may have involved a journalist attempting to access information in this way. However, I also understand that this was an act of the journalist and was not authorised by TNL. As such, I understand it resulted in the journalist concerned being disciplined.



How very interesting.

[17.1.12 This has now been followed up by Paul Waugh at Politics Home and Fleet Street Blues.]


17 January 2012 - further witness evidence from Leveson

First witness statement of Thomas Mockridge, CEO of News International:

20. Have you, or The Times, The Sunday Times, The Sun or The News of the World (to the best of your knowledge)ever used or commissioned anyone who used "computer hacking" in order to source stories, or for any other reason?

20.1 As with my answer to question 12 above, I shall restrict my response to this question to my knowledge of The Times, The Sunday Times and The Sun.

20.2 Neither I nor, to the best of my knowledge, The Sunday Times or The Sun has ever used or commissioned anyone who used "computer hacking" in order to source stories or for any other reason. In relation to The Times, I am aware of an incident in 2009 where there was a suspicion that a reporter on The Times might have gained unauthorised access to a computer, although the reporter in question denied it. I understand that that person was given a formal written warning as a result and that they were subsequently dismissed following an unrelated incident.



Corrected to an extent by his second witness statement:

At paragraph 20.2 of my first witness statement of referred to a reporter at The Times who might have gained unauthorised access to a computer in 2009. At the date of my first witness statement, it was my understanding that the reporter in question had denied gaining such access. Following further enquiries, I now understand that the reporter in fact admitted the conduct during disciplinary proceedings, although he claimed that he was acting in the public interest. The journalist was disciplined as result, he was later dismissed from the business for an unrelated matter.


From witness statement of James Harding, Editor of The Times:

19. The Times has never used or commissioned anyone who used computer hacking to source stories. There was an incident where the newsroom was concerned that a reporter had gained unauthorised access to an email account. When it was brought to my attention, the joumalist faced disciplinary action. The reporter believed he was seeking to gain information in the public interest but we took the view he had fallen short of what was expected of a Times journalist. He was issued with a formal written warning for professional misconduct.


So, we now know that:

- the incident was in 2009;
- the reporter was male ("he");
- the computer hacking was in the form of unauthorised access to an email account;
- a disciplinary process was commenced after concerns from the newsroom;
- the reporter admitted the unauthorised access during the disciplinary process;
- the incident was held to be "professional misconduct" and the reporter was disciplined;
and
- the reporter is no longer with the business having been dismissed on an unrelated matter.


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Saturday, 31 December 2011

Nineteen Eighty-four and 2012

The stuff of politics is power.

A political process is the means by which conflicting attempts to obtain power can be reconciled; it seems a truth of human nature (as well as of other animals) that there is always someone who wants the individual currently with any power not to have it.


Subject to this, there are then different types of power.

The brute force of physical coercion is subject to who has control of military and civil police forces.

The power of formal language, backed ultimately by coercion, is the stuff of law and the justice system.

The ability to make allocations of scarce resources is the essence of economics and social policy making.


And perhaps until recently there was the control of information.

The state and the media determined who knew what, and when.

Even now there are politicians and media folk who believe that a "command and control" approach to communications is still unproblematic: the internet and the ability to move and publish huge amounts of data are mere details to be addressed by more regulation.


In Nineteen Eighty-four, George Orwell extrapolates certain themes of the mid 1940s and posits them in the mid 1980s. Some of these he gets right, even now on the eve of 2012.

Big Brother is watching us more than ever.

However, Nineteen Eighty-four accepts that there would still be a "command and control" approach to communications. Winston Smith amends and censors the news record, and Times editorials are exemplars of Newspeak.


One wonders what Orwell would have made of a future where communication was not the monopoly of the elite.

Would Orwell have seen that as just another problem to be managed by the totalitarian?

Or would he not have been able to imagine a totalitarian regime without complete control of the means of communication?


But what is clear is that the government and media elite cannot casually control information flows is something relatively novel in modern politics.

(It is tempting at this point to make a comparison with the Reformation where - some historians tell us - there was a movement against the established churches because people could read the scriptures for themselves, in the vernacular. However, against this lazy caricature is the fact that many still relied on their religious leaders for interpreting scripture: there were just new interpretations and new leaders.)


Will there need to be a new politics in response to the inability of the state and the media elite to now keep complete control over information flows?

Will there be a utopia of informed citizen politics?

Is it going to go all participatory?


The answer probably lies in the other probable truth of human nature (as well as of other animals) that there are always many individuals who don't want power themselves, whoever else gets it.

Those seeking power will usually be a small minority; and the better power-hunters will adapt more successfully to new circumstances.

For example, it was political geniuses such as Disraeli and Salisbury that realised that the new mass electorate in late Victorian Britain could actually be exploited by a popular and well-organized conservative party.


What will happen will be that those seeking power - either in politics or in the media - will now just become more adept at sailing their ships with no full control over the buffeting of the waves.

The best politicians and media leaders will now harness the energy of those willing to spend time synthesizing and interpreting data; there will be a general realisation that the key political skill in respect of information flows will be opportunism, and not management.

Those wanting power - over coercive force, and over law-making and allocation decisions - will still be there. They will still be watching us and intruding on our autonomy.

But - to invoke Orwell again - they will no longer be be able to insist easily that two plus two is five.

They will instead leave it for us to work out whether that is correct for ourselves.

And, sadly, one suspects few of us will.



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Monday, 26 December 2011

Erecting a statue of George Orwell

Someone is suggesting that a a statue of George Orwell be erected just outside the new BBC building.

On the face of it, this seems a splendid idea.

Orwell and the BBC - civility and decency, the qualities that any thinking and sensible person would endorse - together in one place.

What could be wrong with that?


It is true that for a writer of such a considerable reputation there is little in any formal and tangible recognition of George Orwell - there is, for example, no plaque at Westminster Abbey.

Yes, there is a prize in his name and a fine scholarly collected edition; yes, his books are on the shelves of homes and schools; and, yes, phrases and ideas from "Room 101" and "Big Brother" to "Newspeak" and "more equal than others" float freely in our elite and popular culture.

But there is nothing to go and actually see.


One suspects Orwell himself would have loathed the idea of a statue.

For although Orwell was serious about promoting his writing and his ideas, and was assertive in protecting his interests about payment and publication, he rarely promoted himself in any direct manner.

He was a modest and gentle man, and the notion of any personal ostentation would have riled him, as it would have done for many of his time and social background.

It was not the done thing.


Even his grave shows this lack of fuss.

Stuck in an Oxfordshire village, which he himself did not visit - the funeral was arranged by a friend - the gravestone's epitaph is simple as could be.



No mention of his famous pseudonym and no mention of "writer" - and certainly no crude tribute or awkward versifying - it just has his birth name and dates.

If you want to go and see something about Orwell, go and see his grave.


A statue would undoubtedly have smacked to Orwell - and it really should smack to us - of a cult of personality - the wrongful detachment of the person from their substance.

Indeed, a more appropriate physical monument to Orwell would be based on one of his essays, where he sought to depict the significance of things - a cup of tea, say, or a common toad.


The last thing the legacy of Orwell requires is a statue.

The intellectual and cultural significance of Orwell should not be some fixed monument, promoted by do-gooders to the approval of those in power.

What would be far better would be for people not only to read Nineteen Eighty-four and Animal Farm and the brilliant essays like Politics and the English Language - but to re-read and think about them so as to see if there is anything in there still of general application.


And if we are to have this statue of Orwell, why not have more?

"...the world looked cold. Down in the street little eddies of wind were whirling dust and torn paper into spirals, and though the sun was shinning and the sky a harsh blue, there seemed to be no color in anything except the statues that were erected everywhere. The black-mustachio'd face gazed down from every commanding corner. There was one by the house front immediately opposite.

"GEORGE ORWELL IS WATCHING YOU, the inscription said..."



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Thursday, 22 December 2011

Why are lawyers hated?

Sitting there, as you scrape the bottom of any barrel, are the lawyers.

They sit alongside the estate agents and the tabloid journalists as those with the jobs that people claim to hate.

Most good and sensible people seem to be agreed that it is perfectly fine to dislike the legal profession.

It is an utterly acceptable social prejudice.


Why is this so?

In some ways, it is a strange hostility.

Few lawyers work on their own account; the usual situation is that a lawyer is acting for someone else.

The classic model is that the lawyer merely offers expertise in the law and advocacy which lay people do not have themselves.

However, it is the lawyer who is deplored, and not their client. To be annoyed that a person or company has engaged “bloody lawyers” or that a situation “has gone legal” is perhaps to implicitly absolve those instructing the lawyers from any real blame.


This disdain goes beyond the lawyers of other people.

Many people dislike their own lawyers and – quite genuinely – cannot see the point or the value in what they do. A letter costing £300, or a conveyance taking three weeks too many to complete, seems to be counter-intuitive.

What is actually being paid for?

And why are clients placed into situations where they feel compelled to pay significant amounts of money for what appears to be little concrete output?


What makes this antipathy particularly odd is that it is often accompanied by sentimentality about the heroic and defiant lawyer. Whether it be Atticus Finch or Perry Mason there is a general sense that whilst lawyers in general in bad, particular lawyers “on the right side” can be very good.

This positive sense is adopted even in personal life: when there is a certain type of crisis, the first thought of many people is to get the best lawyer they can (even if for various reasons such a lawyer is not available, or even in existence).

And any practicing lawyer will tell you of the friends who diss the legal profession one moment and seek free legal advice the next.


So what can explain why lawyers are hated?

One answer perhaps lies in the very nature of law.

The stuff of law consists of words and coercion. Lawyers, like wizards and witches with spells, believe that certain words when set out in formal and learned ways can have particular consequences.

For lawyers these words are contained in contracts, statutes, writs, wills, questions and speeches in court, and so on.

But unlike magical folk, the lawyers’ words can and do lead to real-world effects: for example, the bailiff at your door, or the guard taking you to the cell.

The job of the lawyer is deal with special forms of words, and the worldly implications that those words can have in any given situation.


This, of course, is generally lost on the client.

The business person cannot see why there has to be a forty-page agreement. The defendant cannot see why their advocate cannot simply lie to the jury. The parent is being denied access to their child. All the client can see – or imagine – is a person saying unhelpful and unwelcome things, and then expecting to be paid for it.


That said, it is actually difficult to imagine someone becoming a lawyer just because of greed.

For the same qualifications, there are more lucrative careers in business and finance.

Those lawyers who do earn vast amounts – QCs and City lawyers – are exceptional and their “success” usually down to random good fortune: there are many better lawyers who never become “fat cats”.

Any rapacity is not a feature of lawyers as a whole, though it may be a quality of certain lawyers.


The reason why lawyers are generally disliked may not be down to their actual conduct or their personal qualities.

It is instead because law is both powerful and – in the main – invisible.

Law leaves traces in certain documents and speech acts, and it can manifest itself in the coercive actions of hard-faced individuals; but generally law is equally threatening and elusive.


It is perhaps not so much that lawyers are hated, but that law itself is feared and mysterious.

That this is the case is unfortunate, and it is an entirely fair criticism that many lawyers do not do more to promote the public understanding of law.

Of course, barriers to lay understanding can suit the interests of lawyers. Lawyers have no general interest in enabling potential clients to work out their own legal problems.

And, so to that extent, lawyers really only have themselves to blame.


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Sunday, 18 December 2011

Maurice of the Phoenix, RIP

Maurice of the Phoenix has died.

I never knew his surname - it turns out to have been Huggett.

And I only once saw him outside of the Soho club he managed, having a coffee in some street cafe on Dean Street.

But I will miss him, though I hardly knew him.


The Phoenix Artist Club - it goes by other similar names - is one of the few places left around Charing Cross Road with any genuine character.

Snug under the Phoenix theatre, it is friendly, rather than exclusive; any person at the reception desk welcomes you, rather than thinking of an excuse to turn you away.

It is packed with odd paraphernalia and theatre lore, but none of it contrived or self-congratulatory.

And it is relaxed and without tiresome pretension; if there are ever famous faces, nobody really cares.

It is one of the nicest places to be in London.


And Maurice was usually there.

If he was, he then put every effort to be make you at ease.

His campness was not that of the person insisting that you take them on their terms; instead, his whole concern was always to make you feel special.

It mattered not a dam who you were.


Many will tell of his kindnesses; but my special happy memory is him agreeing that Phoenix could host my 40th birthday party in the club's backroom.

And here he is - presenting the gift of pink-labelled club champagne to the birthday boy.



Rest in peace, Maurice.

Tuesday, 6 December 2011

Bell Pottinger - Priceless

There is an interesting report in today's Independent about lobbyists Bell Pottinger.

My favourite part is a quote towards the end, from Lord Bell:

"The conduct of the Bureau of Investigative Journalism does not remotely constitute responsible journalism. It is an attempt by unethical deception to manufacture a story where none exists."

Priceless.


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Sunday, 4 December 2011

When I am 64

When something nice happens to you, you are not supposed to talk about it.

At least that is the British way, and the way of social media.

But something nice happened to me last week, and I would like to say something about it.


I was included in a list of "100 Influential Men" by GQ, a magazine which I had never bought before.



They put me at number 64.


This, of course, is ludicrous.

I can think of 64 "Davids" of far more influence than I could ever muster.

Indeed, there are probably 64,000 more important "Davids" in London alone.

But it was still nice.

And this is why.


Four years ago I lost my job during the Credit Crunch.

No one wanted to pay me to do lawyering.

And certainly no one would have thought to pay me as a journalist.


Then in my late 30s - for the first time in my life - I found something I really enjoyed.

It was writing on the internet about legal and other matters.

Because of this, I managed to return to the profession - specialising in social media and internet law. It also meant I was able to share ideas and insights with similar-minded people wherever they were.

I got carried away with this, without thinking what it would lead to.

There was no grand plan, no "social media strategy" (dear god).

And so after a decade and a half of frustrations and obstructions, I began to enjoy myself, which I never really had done since before university.

It certainly helped my depression, which had dogged me for years, and still does.

(Depression is something else one is not supposed to talk about.)

So that is why it is nice to be on a list like that.


However, what me being on that list is supposed to mean is that Twitter and social media are influential.

GQ could have chosen from hundreds of other bloggers and Twitter users, and made a similar point.


But all the same, I now have a copy of my GQ in my bag and for a week or so, and I will think of ever-more ingenious pretexts to bring it into conversation.

I will put up with the well-meaning teasing and the mean-headed sneering.

Then I will get back to doing what I enjoy most: writing for the internet about law and policy from a liberal and critical perspective.


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Sunday, 27 November 2011

Some libel silliness

Connoisseurs of badly written, illiberal, misconceived, and generally rather gormless libel threats will enjoy what the estimable science blogger Dr Andy Lewis is kindly providing for us - see here and here.

The author of the threatening letters even insists "You and your supporters can stop asking if I am an attorney".

But there is no need for him to say this.

The letters speak for themselves.


The important post which the "attorney" is trying to have taken down is here.

It is well worth a read.


(By the way, any threatening letters about this blogpost may be published in full and the author referred to the leading case of Arkell v Pressdram.)


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