Former Times of London journalist Patrick Foster, who hacked a police officer’s e-mail account in order to identify him as an anonymous blogger, won’t be jailed or tried for the hacking, the Guardian reported.
Instead of facing trial, he “accepted a caution for an offence under the Computer Misuse Act 1990.”
In 2012, the Times‘ editor James Harding apologized during the Leveson Inquiry into press standards for Foster’s hacking Richard Horton’s e-mail. Horton had been blogging anonymously as “Nightjack” and even tried to get an injunction to prevent being IDed by the Times but the judge ruled against him. When fighting the injunction, the Times argued it got Horton’s identity from a “self-starting journalistic endeavor.”
In an August 15 statement on its website, the Crown Prosecution Service quoted its senior lawyer Gregor McGill saying “Any decision by the CPS does not imply any finding concerning guilt or criminal conduct.” The statement didn’t name Foster but the Guardian did.
The CPS told us by e-mail it didn’t name Foster initially because it “would be disproportionately punitive,” but later “reactively confirmed his name.” The CPS told iMediaEthics:
“Patrick Foster was not named in the statement due to the nature of the caution – he has admitted responsibility for his actions which were isolated and have not occurred again. As such, it was felt that a named proactive statement would be disproportionately punitive. However, in accepting a caution an individual accepts responsibility for the offending, and so in the interests of openness and transparency, we have reactively confirmed his name.”
The CPS statement further noted that its decision to give a caution instead of recommend prosecution isn’t “a finding of fact, which can only be made by a court.”
“The CPS’s function is not to decide whether a person is guilty of a criminal offence, but to make fair, independent and objective assessments about whether it is appropriate to present charges for the criminal court to consider,” the statement reads.
The CPS also won’t charge him with perjury or perverting the course of justice, the statement says.
Foster tweeted about the news he won’t be charge. In a statement on TwitLonger, he accused the police of an “unnecessarily heavy-handed police investigation” and said he wasn’t able to work because of the “seemingly never-ending investigation.”
He commented that he was just a “24-year-old junior reporter” when he hacked Foster’s e-mail, which he thought was in the public interest. He wrote:
“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. “
He indicated he took the caution because he wanted to move on from the incident, writing:
“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 extrajudicial punishment of two years on police bail, and my sympathies are with others still languishing in this invidious position.”
Bob Dynowski, Foster’s lawyer, told iMediaEthics that the delay in deciding against prosecuting Foster “has had huge personal and financial consequences for Mr Foster.”
Pointing to other cases he’s been involved in, he argued, “Too many police investigations drag on for too long for apparent lack of urgency on the part of the investigators or an awareness or interest in the impact on those under investigation.” He called for police investigations to be “subject to judicial oversight at the 6 month point” to help expedite investigations.
Dynowski said a caution comes with no “legal punishment.”
“A caution is, for the purposes of the Rehabilitation of offenders act, spent as soon as it is administered,” he wrote. He said the lack of any punishment is “not surprising given the rationale behind the use of cautions especially where, as in Mr Fosters case, the offending was technical and where there was misunderstanding amongst Senior Newspaper lawyers as to whether a Public Interest defence was available.”