News International lawyer Alastair Brett has seemingly wriggled off the hook. In 2009, Brett “recklessly allowed the court to be misled” but didn’t “knowingly” mislead the court when he represented the UK Times in its battle to identify the man behind an anonymous police blog, the high court decided last month.
Brett was still dealing with the repercussions of the five-year-old court battle when the Times was trying to shut down an injunction to prevent the newspaper from revealing the identity of the anonymous Nightjack blog. Even though Brett knew, as the lawyer, that e-mail hacking had been used by his clients, he didn’t disclose that to the court and avoided answering questions about e-mail hacking.
“The ruling cleared Brett of any suggestion of dishonesty in relation to the Nightjack saga,” the Guardian explained
The high court ruled last month that while Brett was reckless in 2009, he didn’t “knowingly” deceive the court that year when he failed to disclose that e-mail hacking was used first to identify the blogger behind Nightjack, the Guardian reported. The Guardian wrote:
“This was because of a combination of a misleading witness statement by Foster, Brett’s apparent denial that there had been any unlawful access to Horton’s email account, and his failure to clarify the matter following questions by the Nightjack blogger’s solicitors.”
In 2009 Times reporter hacked email
The Times claimed in court back in 2009 that it pieced together the identity of man, Richard Horton, but its reporter, Patrick Foster, actually hacked Horton’s e-mail.
The hacking, and Brett’s knowledge of it, didn’t come to light until the Leveson Inquiry into press standards and practices. During a February 2012 session of the inquiry, which was prompted by the phone hacking scandal, Times of London editor James Harding apologized for Foster’s hacking of Horton. Lord Leveson called the statements Brett made back during the 2009 injunction hearing “utterly misleading” and “not accurate.”
Brett said Foster told him he hacked Horton’s e-mail “confidentially” and that he couldn’t have revealed the hacking during the injunction lest he break that promise. Brett said that he told Foster it was wrong to hack and that they couldn’t publish the story unless they could find the information legally. When the question arose of whether Foster hacked Horton’s e-mail during the injunction battle, Brett said he just tried to “avoid answering that question.”
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After the admission that the Times hacked, which brought into question the Times‘ successful blocking of the injunction, the Solicitors Disciplinary Tribunal looked into Brett’s actions during the case.
In December, the Solicitors Disciplinary Tribunal ruled to suspend him for six months and said he “knowingly” misled the court. Because it was “a single episode of misconduct,” the Tribunal said he would only be suspended for six months.
The six-month suspension already has passed, so the High Court ruling doesn’t affect that, theLawyer.com reported.
Last month’s high court ruling overturned that ruling, which Brett had appealed.
The high court judge concluded last month, “I am in no doubt that the court was misled.”
He added, “The risk that the court might be misled, is not incompatible with the duty of confidentiality owed to a person who has disclosed material on an occasion of legal professional privilege.”
The judge argued that Brett could have not misled the court without breaking confidentiality in telling on Foster for hacking.
iMediaEthics has written to Brett for comment.