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Bukovsky v Crown Prosecution Service

Case date: 13/10/2017

Court: Court of Appeal

Area/s of law: Defamation

Barrister/s: Aidan Eardley

 

Background

The Appellant, 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 Respondent issued a press release announcing these charges (‘the Charging Announcement’) which stated, variously, that the Appellant was to be prosecuted “for five charges of making indecent images of children”, that it was “in the public interest to prosecute [the Appellant] in relation to the alleged making and possessing of indecent images of children”, and that the Appellant 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 Appellant 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 Respondent contended that the Charging Announcement meant (in summary) only that the Appellant 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 Respondent contended that the Charging Announcement, in that meaning, was substantially true. 

At the trial of meaning as a preliminary issue, Warby J found for the Respondent on meaning and struck out the claim. He concluded that the natural and ordinary meaning of the Charging Announcement was that: 

(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.” 

The appeal

On appeal, the Appellant argued that the reasonable reader would have gone further than was acknowledged by Warby J, and would have asked themselves what it was that the Appellant was said to have done. Being ignorant of the particular legal meaning of the word “making” in the context of a criminal statue, the reader would assume the Appellant had been present at the scene of sexual abuse of a child. 

Decision

Simon LJ (with whom the other members of the Court agreed) dismissed the appeal, holding that Warby J had been right for the reasons he gave. He summarised these reasons (at [28) as follows: 

  • A crucial feature of the words complained of was the context of the publication, its nature and source: this was an announcement by a prosecuting authority of a decision to prosecute, which directly reflected the statutory language;
  • A reasonable reader would attach weight to the statutory references the Charging Announcement had contained, and would understand that words can have special meanings when used in statutes and by lawyers;
  • “Making a photograph” is not an ordinary and natural use of language (which emphasised that it was being used in a technical sense) and does not carry any necessary implication that the maker was present at the time the photograph or image was made.  

In setting out the approach to the determination of meaning, Simon LJ observed that the familiar summary from Jeynes v News Magazines Limited [2008] EWCA Civ 130, while an “authoritative approach” [12], “omit[ted] an important principle…namely, the context and circumstances of publication” [13]. 

The standard of appellate review on meaning

Although not necessary to decide the issues on appeal, the Court also gave separate consideration to the appropriate standard of appellate review on questions of meaning. 

Simon LJ rejected a test of heightened review (such as requiring the appeal court to be “quite satisfied” that a meaning decision was wrong or “clearly wrong”) [38]. Nevertheless, the Court of Appeal should “proceed cautiously before substituting its own views on meaning and only do so when satisfied that the judge is wrong” [39]. 

That approach was appropriate because “meaning is very often a matter of impression, because experienced defamation judges are well practiced at applying the relevant tests for determining meaning and because it is plainly undesirable for the Court of Appeal to approach the issue on appeal simply on the basis that they might have formed a different view from the judge” [39]. 

Aidan Eardley, instructed by the Government Legal Department, was junior counsel for the Respondent, led by Gavin Millar QC.

 

 

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