Nightjack: LPP, self-incrimination, & whether a 'knowingly' misleading statement is anything other than dishonest
In a fascinating judgment about the unmasking of the blogger 'Nightjack' by The Times, the Divisional Court considered the relationship between a lawyer's duty to their client and their overriding duty to the court and whether knowingly misleading the court can ever be anything other than dishonest (answer: possibly, but it is not easy to say when or how). In addition, the Lord Chief Justice summarised a lawyer's duty to the court generally and gave an implicit warning about the reasonableness of costs incurred by a regulator.
Until 2009, H published a blog chronicling his life as a police officer under the pseudonym 'Nightjack'. The blog won the Orwell prize for journalism in April 2009. B was the Legal Manager for Times Newspapers Limited (TNL) for over 30 years.
In May 2009, B's colleague F told B that he had accessed H's private email account and had identified him as Nightjack. B told F that unless the story could be 'stood up' on the basis of lawfully obtained information, it could not be published. F subsequently advised B that he was able to use publicly available information to verify that H was Nightjack. By this point, B had been advised that F's unlawful access of H's emails may be a crime but that there may be a public interest defence.
F contacted H to tell him that The Times was planning to publish an article exposing him. H instructed solicitors to seek an urgent injunction prohibiting publication. B did not tell counsel for The Times that F had initially identified Nightjack through email hacking. H's solicitors wrote to B asking him to confirm that F did not at any time make any unauthorised access of H's email account. H's solicitors suspected that F may have hacked into H's email and indicated that they were aware that F had previously done this. B became aware that access to H's email account could be a criminal offence under the Computer Misuse Act 1990 (to which there is no public interest defence).
B replied that the suggestion that F accessed H's email account was 'a baseless allegation'. F provided a witness statement to this effect. In spite of further requests from H's solicitors to confirm that F had not accessed H's email account, B did not do so and F's witness statement was not amended or supplemented. At the substantive hearing, the parties proceeded on the explicit basis that F had identified H from publicly available material. Ultimately, H was unable to obtain an injunction on the basis that, as blogging was an essentially public rather than private activity, H could have no reasonable expectation of privacy in relation to the information in question.
The matter rested there until the Times was required to disclose material to the Leveson inquiry (where B appeared as a witness); it became apparent that B had known about F's actions at the time. The SRA brought disciplinary proceedings against B alleging that he (i) failed to act with integrity and (ii) knowingly allowed the court to be misled. The SRA's statement summarising the conduct alleged did not make any specific allegation of dishonesty (which must be explicitly alleged, see e.g. Singleton v Law Society  EWHC 2915). The SDT made clear that it had not proceeded on the basis that B had acted dishonestly, found the allegations proven, and directed that B be suspended for six months and that he pay costs of £30,000.
Grounds of Appeal
B appealed to the High Court on the basis that (i) the SDT failed to have due regard to the relationship between himself, as solicitor, and F as an employee of TNL, (ii) the SDT failed to give effect to the protection given to communications subject to legal professional privilege, (ii) the SDT failed to have regard to PF's privilege against self-incrimination, (iv) the SDT failed to identify what it is that was omitted from PF's witness statement, which could have been included without breaking such professional privilege, (v) the SDT failed to take into account B's honestly held belief concerning his obligations towards TNL and PF, and (vi) the costs awarded were excessive.
The court did not accept that legal professional privilege in circumstances where F might enjoy a privilege against self-incrimination were incompatible with B's duty not to mislead the court. Wilkie J concluded that B was in a position to avoid misleading the court without breaching privilege and that there had been a number of options open to him. One was to obtain the agreement of F to waive privilege. A second was to correct the misleading impression given by the witness statement by making it clear that the statement only intended to convey that the identity of Nightjack as H could have been revealed through publicly available sources. A third was for B to disclose to his counsel the true position and to invite them to make a statement which would similarly avoid giving a misleading impression to the court. A fourth was for B, 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.
Notwithstanding this, The court allowed the appeal to the extent of quashing the decision of the SDT that he was guilty of a breach of "knowingly" misleading the court and substituting for it a finding that he was guilty of "recklessly" misleading the court. The court concluded that the SDT had made an error in explicitly discounting dishonesty yet finding that B had knowingly misled the court. Whilst it may be that a solicitor who knows he is misleading the court but does so because of a mistaken belief that he is obliged to do so in order to protect the confidence of a witness may not be acting 'dishonestly', it is by no means an obvious conclusion and would in the present case have needed to be spelled out before the reader of the decision would be prepared to draw the conclusion that B had not been found guilty of a charge of dishonesty. That had not happened and the finding had to be quashed. However, the court used its power under s.49 of the Solicitors Act to substitute this with a finding that B had recklessly allowed the court to be misled.
The Lord Chief Justice gave a concurring judgment. In addition, he reviewed a number of the authorities relating to a lawyer's overriding duty to the court and the need for lawyers to be alive to the fact that circumstances can arise during the course of any lawyer's professional practice when matters come to his knowledge (or are obvious to him) which may have the effect of making his duty to the court his paramount duty and to act in the interests of justice. Moreover, he made clear that misleading the court 'is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence.'
In relation to costs, the Lord Chief Justice commented on the fact that costs of proceedings which a person may be ordered to pay must be proportionate and that 'It may well be that in a particular case, the regulatory authority bringing proceedings will wish to instruct a person or firm who in the current state of the legal market can command high fees which the regulatory authority may be prepared to pay. However the fact that the market enables such persons or firms to command such high fees does not mean that it is proportionate to make an order for costs by reference to the rates which the legal services market enables such persons or firms to command from the regulatory authority.'
The judgment is an interesting one for a number of reasons. It is often the case that there is spirited negotiation between a regulator and an individual under investigation to avoid the regulator making specific allegations of dishonesty. This particularly arises in relation to lawyers and accountants, who have specific duties in relation to documents (and, in the case of lawyers, to the court). Notwithstanding this, it is often the case that, while there is no specific allegation of dishonesty against a registrant, there is an allegation of preparing or being associated a document knowing that the effect of the document will be to mislead the reader. In many cases, it is difficult to see the difference, save for the fact that the word 'dishonesty' is not used. Whether this represents a victory for the registrant or is an example of the regulator seeking to have their cake and eat depends on the circumstances of the case. However, Brett suggests that a conscious decision by a regulator not to plead dishonestly may preclude an allegation of knowingly acting in a misleading fashion and that it would often be more appropriate to allege recklessness.
In addition to the dishonesty issue, the case provides useful guidance to practitioners about legal professional privilege and of difficulties that may occur in practice. Regulators and prosecutors have to deal with the issue frequently (since a failure to disclose privileged material may constitute an abuse of process whereby it would be unfair for the proceedings to continue) and Wilkie J's suggestions of actions that B could have taken are illustrative of steps lawyers might take in where there is a potential conflict between the duties to the client and to the court. It would be unsurprising if the case becomes required reading for all LPC and BPTC students in learning to reconcile these duties.