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  1. Media Law
August 18, 2014updated 29 Sep 2014 2:25pm

Former Times reporter cautioned for hacking Nightjack Yahoo account

By Dominic Ponsford

A former Times journalist who admitted hacking a Yahoo email account in order to unmask pseudonymous police blogger Nightjack has been given a caution.

The news that Patrick Foster will escape trial comes more than two years after his arrest on suspicion of breaching the Computer Misuse Act and conspiracy to pervert the course of justice.

The CPS said there was insufficient evidence to proceed with the charges of perjury and perverting the course of justice against Foster and another un-named individual

Foster, 30, was media reporter on The Times when he hacked the email account of police blogger Nightjack in order to find out his real name was Richard Horton.

The paper then went on to mislead the High Court in order to see off a privacy injunction from Horton when it failed to reveal how it had discovered its name.

And it then went on to publish the story despite the dubious nature of its provenance.

The Nightjack came to light has a result of the Leveson Inquiry.

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Then editor of The Times James Harding, now head of news at the BBC, said he new nothing about the High Court action. But he took the ultimate decision to publish the story.

It emerged during questioning in the Leveson Inquiry that Foster was advised by lawy Alistair Brett to stand the story up by “proper journalistic endeavour” so he then went on to see if it was possible to identify Horton using non hacking methods.

When Horton tried to stop publication of the story at the High Court on 4 June The Times then gave the court the impression it had identified Horton by legal means.

The Times told Horton’s lawyers that Horton was unmasked by “self starting journalistic endeavour” and “largely deductive exercise”.

Harding was copied in to an email which referenced the email hacking, but he says he did not see it.

He took the decision to publish the story in June 2009. Foster was given a warning letter for “gross professional misconduct” but hung on to his job at The Times.

Harding told the Leveson inquiry: "We felt that having taken up the court's time we had little choice but to publish."

Gregor McGill, a senior lawyer at the Crown Prosecution Service, said: "In April 2014 the CPS received a file as part of Operation Tuleta. The file concerned allegations against two individuals of perverting the course of justice and perjury, and an additional allegation of unauthorised access to computer material against the second individual.

“In relation to the allegations of perjury and perverting the course of justice, it has been decided that no further action should be taken, as there was insufficient evidence for a realistic prospect of conviction for any offence.

"Any decision by the CPS does not imply any finding concerning guilt or criminal conduct; the CPS makes decisions only according to the test set out in the Code for Crown Prosecutors and it is applied in all decisions on whether or not to prosecute.”

Patrick Foster said: "The past two years of this unnecessarily heavy-handed police investigation have been a nightmare. I have been unemployable, but have had to bear the cost of substantial legal fees.

“I have co-operated with the seemingly never-ending investigation at all times. In order to bring this regrettable episode to an end, I have accepted the offer of a police caution for committing a technical breach of the Computer Misuse Act 1990.

“I cannot say how likely it is that I would have been charged, had I rejected the caution. In 2009, when I committed this technical breach, I was acting on the understanding, common across Fleet Street and amongst journalists and lawyers, that I would be able to rely on a public interest defence. That understanding was wrong…

“Some journalists have waited up to 11 months after charge before being put before a court. I have already been on bail for two years. I cannot in good conscience risk putting my family through many more months of heartache, and mounting legal costs.

“It is only through the support of my family and friends, and the help of my solicitor, Bob Dynowski, that I have been able to get through the past two-and-a-half years.

“No one should ever have to suffer the extra-judicial punishment of two years on police bail, and my sympathies are with others still languishing in this invidious position.”

In October 2012 The Times paid out £42,5000 in damages to Richard Horton.

Alastair Brett is currently appealing a six-month suspension and £30,000 fine from the Solicitors’ Disciplinary Tribunal for causing the High Court to be misled.

He is set to argue that the advice he gave to journalist Patrick Foster was subject to legal privilege so did not gave to be disclosed.

Operation Tuleta Investigation into allegations of computer-hacking.

Rhodri Phillips, reporter at The Sun

Arrested on 19 July 2012 on suspicion of handling stolen goods

Cleared on 21 August 2013

Nick Parker, chief foreign correspondent at The Sun

Arrested on 30 July 2012 on suspicion of handling stolen goods

Still on bail

37-year-old male journalist

Arrested on 31 July 2012 on suspicion of handling stolen goods

Told on 18 October 2013 that they will face no further action.

Patrick Foster, former media reporter for The Times

Arrested on 29 August 2012 on suspicion of computer hacking and conspiracy to pervert the course of justice

Given a caution on 15 August 2014

Former Sun journalist Ben Ashford

Arrested on 7 September 2012  on suspicion of offences under the Theft Act, Computer Misuse Act and on suspicion of conspiracy to pervert the course of justice 

Charged with handling stolen mobile and accessing computer data illegally

Found not guilty by a jury on 13 August 2014.

Chris Pollard, 30, Sun casual reporer

Arrested on 20 September 2012 on suspicion of handling a stolen mobile phone

Cleared on 28 August 2013

Alex Marunchak, former News of the World Ireland editor

Arrested on 2 October 2012 at his home in Kent on suspicion of offences under the Computer Misuse Act 1990 and the Regulation of Investigatory Powers Act 2000.

Still on bail

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