Bukovsky v Crown Prosecution Service  EWHC 1926 (QB)
Case date: 28/07/2016
Court: High Court
Area/s of law: Defamation
Barrister/s: Aidan Eardley
The Claimant, a well-known Soviet dissident who has lived in England for many years, is facing trial on a number of criminal charges. He has entered pleas of “not guilty” to all charges.
In April 2015, the Defendant issued a press release announcing these charges (‘the Charging Announcement’) which stated, variously, that the Claimant was to be prosecuted “for five charges of making indecent images of children”, that it was “in the public interest to prosecute [the Claimant] in relation to the alleged making and possessing of indecent images of children”, and that the Claimant had been summonsed to appear at court on charges including “Five counts of making an indecent photograph of a child contrary to section 1(a) [sic] of the Protection of Children Act 1978…”.
The Claimant brought proceedings for libel and misfeasance in public office in respect of the Charging Announcement. He contended that the Charging Announcement meant (in summary) that he was accused of having been present at the scene of the abuse of a child, which he had photographed. The Defendant contended that the Charging Announcement meant (in summary) only that the Claimant had been, or was to be, charged with the specified offences, that there was sufficient evidence to prosecute him on those charges and that it was in the public interest to do so. The Defendant contended that the Charging Announcement, in that meaning, was substantially true. The Defendant further contended that, regardless of the single meaning to be attributed to the Announcement, it was protected by the defence of publication on matter of public interest under s4 of the Defamation Act 2013.
The assigned Master directed that there should be a trial of meaning as a preliminary issue.
Warby J held that the Charging Announcement did not bear the meanings attributed to them by the Claimant. Their natural and ordinary meaning was:
(1) “Mr Bukovsky was to be charged with offences of making indecent photographs of children contrary to section 1 of the Protection of Children Act 1978, possessing indecent photographs of children contrary to section 160 of the Criminal Justice Act 1988, and possession of a prohibited image contrary to section 62 of the Coroners and Justice Act 2009;
(2) The evidence in support of such charges was sufficiently convincing to justify a prosecution of Mr Bukovsky, and it was in the public interest to do so.”
Warby J applied the well-known principles on the ascertainment of meaning as set out in Jeynes v News Magazines Limited  EWCA Civ 130. He accepted that determining meaning as a matter of fact, applying these principles, is a different exercise from construing, as a matter of law, the words in the statutes creating the offences with which the Claimant is charged: .
However, reasonable readers would expect the words chosen by the CPS to be precise and to follow the contours of the applicable law. They would attach weight to the references to the statutes under which the charges were laid. They would know that words can have special and precise meanings when used in statutes and by lawyers: .
Further, “making a photograph” is not a natural way to describe pressing the button on a camera, and looks like a technical usage. This unusual use of language would put the ordinary reader on guard: .
Also, everybody knows that the process of creating or producing a photograph can involve a wide range of activities, such as developing it from film, or printing it from a digital image. Nothing in the Charging Announcement indicated that, in levelling the charge, the CPS were alleging any particular role or adopting any particular meaning of “making”, limited to or involving the physical presence of the Claimant at the indecent scene in the guise of photographer. Reasonable readers, not avid for scandal, would not infer that this is what the CPS were alleging. It would not be naïve for a reader to say to themselves that it was clear from the Announcement that the CPS was alleging some form of participation in the creation of an indecent photograph, but unclear precisely what the factual allegation was: .
Warby J would also have accepted the Defendant’s alternative submission that, if the ordinary reader did give any further thought to the question of what conduct was being alleged, they would conclude, on the basis of general knowledge of the prevalence of offences of downloading pornography, that the Claimant was accused of downloading or otherwise creating digital copies of child pornography. The thoughtful reader would consider that if the allegation was one of personal participation in or attendance at the indecent event, the focus of the Charging Announcement would be different: -.
Warby J emphasised that there is no suggestion that the Claimant is guilty or is reasonably suspected to be guilty of taking photographs of indecent acts with children, or personal presence at the scene of any child sex abuse. It was accepted that a defence of truth could not have succeeded if the Claimant had been right about the meaning of the Charging Announcement: -; .
Aidan Eardley, instructed by the Government Legal Department, appeared for the Defendant.