The Corporate Offence of Failure to Prevent the Facilitation of Tax Evasion: Two years on
Times Newspapers solicitor partially successful in appeal of SDT finding that he allowed for allowing the court to be misled in relation to the real source of information obtained by hacking.
Judgement date: 23 July 2014
On 05 December 2013, the Solicitors' Disciplinary Tribunal (SDT) found Alastair Brett, a solicitor, guilty of two breaches of the Solicitors Code of Conduct 2007. The SDT determined that he should be suspended from practice for 6 months and should pay the costs of those proceedings. Mr Brett appealed the findings of breach by the SDT and the award of costs.
Mr Brett was legal manager, in effect in-house solicitor, at Times Newspapers Ltd (TNL) for over 30 years.
On 20 May 2009, Patrick Foster (PF) ,junior reporter at The Times, told Mr Brett that he had discovered the identity of an anonymous internet blogger known as “Nightjack”. (The pseudonym “Nightjack” was used until early 2009 by DC Horton (RH) of Lancashire Constabulary for an internet blog which was based on his life as a police officer. The blog acquired a high public profile.)
PF informed Mr Brett of this discovery and claimed that RH was using confidential police information on his blog and his activities appeared to be a breach of police regulations. PF felt there was a public interest in publishing RH’s identity. PF told Mr Brett he had identified RH as a result of unauthorised access to Nightjack's email account (i.e hacking his account).
Mr Brett told PF that what he had done was unacceptable and that the story was legally unpublishable if it was based on unlawfully obtained information. PF told Mr Brett that he thought that he could identify Nightjack using publicly available sources of information.
PF went on to seek to verify that RH was Nightjack using publicly available information. On 30 May 2009, PF sent an e-mail to Mr Brett stating that he “had cracked it and could do the whole lot from publicly accessible information”.
In the meantime Mr Brett telephoned a barrister, AE, seeking advice as to whether a crime had been committed. He was advised that a crime contrary to the Data Protection Act may have been committed but that there might be a Public Interest defence.
Injunctions and correspondence with RH’s Solicitors
On 27 May 2009, PF contacted RH and told him that The Times was planning to publish an article exposing him as Nightjack. RH immediately instructed solicitors to seek an injunction against TNL preventing publication.
Junior counsel, Jonathan Barnes, was instructed by Mr Brett to represent TNL. Mr Brett did not tell Jonathan Barnes that PF had originally identified RH as Nightjack by hacking his emails.
On 01 June 2009, RH's solicitors, Olswangs, wrote to Mr Brett and asked him to set out how the journalist identified RH as the author of the blog. They also asked that the journalist explain in a witness statement how he had ascertained certain information such as RH’s mobile telephone number and the identity of the literary agent of RH. The letter said: “…we understand that [PF] has a history of making unauthorised access into email accounts …”.
Mr Brett replied to Olswangs by letter on 02 June 2009. He enclosed PF's witness statement. This statement set out what PF had done to demonstrate that the identity of RH could be revealed by piecing together items of information in the public domain. In his accompanying letter, Mr Brett said that Olswangs’ reference to PF having a history of making unauthorised access to email accounts was a “baseless allegation”.
On 03 June 2009, Anthony White QC and Jonathan Barnes, counsel instructed by Mr Brett on behalf of TNL, neither of whom had been informed by Mr Brett of the hacking, filed a skeleton argument on behalf of TNL. At the end of paragraph 7 of that document they stated:
“[PF] was able to establish the claimant's identity using publicly available materials, patience and simple deduction.”
And in paragraph 8 they stated:
“… in fact as [PF]'s witness statement shows he established the identity of the claimant from publicly accessible sources.”
On 03 June, following receipt of that skeleton argument, Olswangs wrote to Mr Brett. They referred to the passages quoted above in the TNL skeleton argument and said:
“Our concerns as to whether [PF] relied solely on publicly accessible material in his pursuit of our client are exacerbated by the fact that he has offered no explanation as to how he obtained the mobile telephone number and the identity of the literary agent of our client which plainly were not stated in publicly accessible material.
If the position is that [PF] identified our client as the author of the blog solely by publicly available material and deduction we ask that he state this expressly in a further witness statement … Absence such a witness statement we ask that your counsel amend this passage in the skeleton argument lest the court be inadvertently misled.”
There was no further statement from PF and the skeleton argument was not amended.
Hearing on 04 June in relation to injunctive relief sought by RH
At the substantive hearing on 04 June, Counsel for RH and Counsel for TNL stated that they accepted that RH’s identity had been discovered by detective work rather than breaches of confidence.
Mr Justice Eady dealt with the claim based upon the publication of allegedly private information, in contravention of Article 8 of the ECHR and concluded that the claim failed because “blogging is essentially a public rather than a private activity ”. The claim for injunctive relief was not granted.
The Leveson Inquiry
As part of the Leveson Inquiry, TNL provided e-mails and other material in relation to PF's disclosure to Mr Brett that he had hacked RH's e-mail account and in relation to that fact not being disclosed to the court. On 15 March 2012, Mr Brett gave evidence before the Leveson Inquiry.
The SRA case
Subsequently the SRA brought proceedings before the SDT against Mr Brett. It was the SRA’s case that there was a breach of the SDT Rules. It alleged a breach of Rule 1.02 , failing to act with integrity, and rule 11.01 “ knowingly allowed the Court to be misled… ”. This was on the basis that:
• Mr Brett, while conducting litigation in the High Court, caused or allowed a witness statement to be served and relied on in support of TNL's defence, which knowingly, and/or recklessly, created a misleading impression as to the facts and matters deposed to in the statement.
• During a hearing before Mr Justice Eady, Mr Brett knowingly allowed the Court to proceed on the basis of an incorrect assumption as to the facts.
• In his letter to Olswangs, he made a false denial when he said that he regarded the suggestion that PF might have accessed RH's email address as ‘baseless'.
• When Mr Brett was giving evidence before the Leveson Inquiry and was being questioned about the statement of PF, he accepted that the witness statement: “was not entirely accurate” and “it certainly doesn't give the full story”.
• Mr Brett's evidence before the Leveson Inquiry was that he had instructed PF to prepare his statement, that he had reviewed its contents and was aware at the time that he could not deny that PF had accessed “Nightjack's” emails.
• Mr Brett did not inform counsel instructed by TNL of the unauthorised email access.
Mr Brett’s response to the SRA case
Mr Brett responded to this by saying that he:
“… may have inadvertently and unintentionally allowed the Court to potentially be misled”.
“… (he) may legitimately be criticised … in failing to identify and correct the wording of the [PF] witness statement in a number of places which gave the impression that [PF] had only used information and documents in the public domain to identify [RH]. This was an entirely innocent, or inadvertent, oversight … it is fully accepted with hindsight, he should have spent more time scrutinising the draft to ensure that [it was not] inadvertently misleading”.
Mr Brett acknowledged that he did not make the Court aware that PF had initially obtained the information regarding RH's identity by unauthorised access to his emails. However, he did not accept that he was under a duty to breach PF's confidence. Alternatively, if he were under such a duty, his failure to do so was a genuine misunderstanding of the prioritisation of his competing duties.
Concerning his failure to inform counsel instructed by TNL of the unauthorised email access, Mr Brett acknowledged that he did not inform counsel, but he did not accept that he was under any duty to do so. Again, if he were under such a duty, his failure to do so was a genuine misunderstanding of the prioritisation of his competing duties and obligations.
The SDT’s determination
The SDT found the allegations proved beyond reasonable doubt. In relation to the breach of Rule 11.01, it said that Mr Brett's use of the words “I regard this as a baseless allegation” in his letter to Olswangs of 02 June gave the impression that he believed the allegation that PF had obtained unauthorised access into RH's email account to be baseless, in spite of the fact that he knew that PF had hacked into it.
The SDT considered that the response from Olswangs on 02 June made it clear, beyond doubt, that Olswangs understood Mr Brett to be stating that the suggestion that PF had accessed RH's email address was baseless. Mr Brett had taken no steps to correct that understanding.
The SDT considered Mr Brett's contention that he had a dilemma between his duty to the Court and his duty to protect privileged information provided by PF. The SDT found that his duty was to the Court rather than to PF.
The SDT found that Mr Brett had failed in his duty to inform TNL's counsel of the true position.
The Court was misled and in consequence, the SDT found that Mr Brett knowingly allowed the Court to be misled in the conduct of litigation contrary to Rule 11.01 and failed to act with integrity contrary to Rule 1.02.
Mr Brett appealed against the findings of breach by the SDT and the award of costs. He was critical of the SDT in various respects including that they allegedly failed to:
• give effect to the protection afforded to communications subject to legal professional privilege, which applied to the information provided to PF.
• have regard to PF's privilege against self-incrimination. He disputed the SDT’s conclusion that the relationship between Mr Brett and PF was simply one of a witness in proceedings brought against Mr Brett's clients, Times Newspapers Ltd.
• identify what was omitted from PF's witness statement which could have been included without breaking such professional privilege.
• take into account his honestly held belief concerning his obligations towards TNL and PF, having regard to the legal professional privilege and protection from self-incrimination which PF's disclosures to him attracted.
Mr Brett claimed that he only realised that PF's witness statement was potentially misleading when the issues were exhaustively investigated before the Leveson Inquiry in 2012. It was only at that stage that he realised that PF's witness statement could have given a misleading impression.
Discussion and Conclusions
Legal professional privilege
Mr Justice Wilkie accepted that PF may have made this disclosure to Mr Brett on an occasion of confidentiality, one of legal professional privilege or one where similar obligations of confidentiality arose. He also accepted that it is long established, as a fundamental principle of our legal system, that there can be no requirement for a solicitor to disclose anything that is said to him on an occasion of legal professional privilege save where the person who made the disclosure agrees.
Mr Justice Wilkie therefore concluded that the SDT were in error in so far as they concluded that there was a duty upon Mr Brett to disclose that which had been revealed to him by PF on an occasion of confidence and/or legal professional privilege.
Mr Justice Wilkie said:
“In my judgment that duty, not knowingly to mislead the court or not to take 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.
There were a number of options available to him. One was to obtain the agreement of PF to waive privilege …. A second was to correct the misleading impression given by the witness statement ….. In the absence of a waiver of privilege Mr Brett could have adopted the position that TNL was not prepared to say how it was that PF, in fact, discovered the identity of Nightjack. A third was for Mr Brett to disclose to his instructed counsel… the true position concerning the circumstances in which PF initially discovered the identity of Nightjack and to invite them to correct ….the skeleton and in open court to make a statement… which would similarly avoid giving a misleading impression to the court. A fourth was for Mr Brett, on behalf of his client TNL, to abandon defending the claim without revealing the information given to him by PF on an occasion of legal professional privilege.
None of these options would have involved breaking the confidence in which PF had made his disclosure to Mr Brett, but each of them would have avoided allowing the court to be misled.
In my judgment, therefore, the focus … on the significance of the issue of the legal professional privilege and/or the prohibition on self-incrimination is a red herring. The real focus of the SDT's considerations, and of this appeal, are the dual questions '(a) was the court in fact allowed to be misled', and, (b) 'what was Mr Brett's state of mind…?'
The misleading of the court
Mr Justice Wilkie said that he was “in no doubt that the court was misled”. The court was misled so as to act on the basis that PF had initially identified Nightjack as RH through the use of publicly available sources, and not by illegitimate means when, in fact, the reverse was true.
Mr Brett's state of mind
The SRA did not allege that Mr Brett was deceitful in misleading the court, but that he knowingly misled the court. Mr Justice Wilkie said that Rule 11.01 was drafted on the basis that “there may be cases in which a solicitor may knowingly mislead the court but not deceive the court. For my part I find that an extremely difficult distinction to draw in its general application. I find it even more difficult to draw in the circumstances of this case”.
The allegation was that Mr Brett allowed the court to be misled knowing that it was being misled. Mr Justice Wilkie said of this:
“I find it hard to see how that allegation could be made good without impugning to Mr Brett's honesty.
In my judgment, the SDT having disavowed making any finding of dishonesty could not properly then proceed to make a finding that Mr Brett “knowingly” allowed the court to be misled in the circumstances of this case which was, without more, in effect, a finding of dishonesty. If it intended not to make a finding of dishonesty whilst finding the charge of knowingly misleading proved, it would have to have spelt out its analysis of how it came about that he acted knowingly though not dishonestly.
The Judge concluded that in the absence of any reasoning in the SDT’s determination for not finding dishonesty but finding knowingly misleading, “the reader of the decision is forced to the conclusion that the SDT has come to a finding of dishonesty against Mr Brett despite stating that it did not intend to do so. That is an unsatisfactory state of affairs and, in my judgment, amounts to the SDT having got that part of the decision “wrong”.
However, Mr Justice Wilkie concluded that it was open to the SDT on its findings of fact to reject Mr Brett's claims only to have been negligent. The Judge concluded:
“In my judgment, the evidence…pointed inevitably to the conclusion that Mr Brett acted recklessly, as described above, in allowing the court to be misled. On that basis it was inevitable that the SDT would, had it properly addressed the issues as it had defined them, have found him guilty of a breach of Rule 11.01 on the basis that he “recklessly” allowed the court to be misled. In my judgment it follows, similarly, that in so acting, he was guilty of a breach of Rule 1.02 of failing to act with integrity.”
Summary of judgment
Mr Justice Wilkie allowed the appeal, but only to the extent of quashing the decision of the SDT that he was guilty of a breach of Rule 11.01 by “knowingly” misleading the court and substituting for it a finding that he was guilty of Rule 11.01 by “recklessly” misleading the court. He rejected his appeal against the finding of the SDT that he acted in breach of Rule 1.02 by failing to act with integrity.
The duty to the court
The Judge concluded his judgment by stating that:
"Where an advocate … puts before the court matters which he knows not to be true or by omission leads the court to believe something he knows not to be true, then … the inference will be inevitable that he has deceived the court, acted dishonestly and is not fit to be a member of … the legal profession.
It is of the utmost importance that [an] advocate or litigator has at the forefront of his mind his duty to the court, the necessity to avoid breach of that duty."
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