Bukovsky v Crown Prosecution Service

This is an appeal against an order of Warby J made on 28 July 2016 striking out the appellant's libel claim. The claim was founded on the contents of a press release ('the Charging Announcement') published by the respondent ('the CPS'). The charging announcement stated that the CPS had authorised the prosecution of the appellant on a number of charges.

The libel claim could only succeed if the words complained of in the Charging Announcement were given the meaning pleaded by the appellant. On the trial of a preliminary issue as to the meaning, Warby J ('the Judge') ruled that the words did not bear the meaning for which the appellant contended but bore a lesser meaning. Consequently, he struck out the claim.

On this appeal, the appellant contends that the Judge was wrong in his conclusion, that the words bear the meaning for which he contends and that the appeal should be allowed. There is no issue that, if the Judge was correct in his conclusion on meaning, the claim was rightly struck out.

In April 2015, the appellant was charged with a number of offences including making indecent photographs of children contrary to s.1 of the Protection of Children Act 1978. The charges related to images allegedly downloaded and stored on his personal computer.

The Charging Announcement was contained in a document in the following terms (with emphasis added):

Vladimir Bukovsky to be prosecuted over indecent images of children

27/04/2015

The Crown Prosecution Service (CPS) has authorised the prosecution of Vladimir Bukovsky, 72, for five charges of making indecent images of children, five charges of possession of indecent images of children and one charge of possession of a prohibited image.

Jenny Hopkins, Chief Crown Prosecutor for the CPS in the East of England, said:

'Following an investigation by Cambridgeshire Police, we have concluded that there is sufficient evidence and it is in the public interest to prosecute Vladimir Bukovsky in relation to the alleged making and possessing of indecent images of children. It is alleged that, collectively, the images meet the definition of categories A, B and C, as defined by Sentencing Council Guidelines.

The decision to prosecute was taken in accordance with the Code for Crown Prosecutors.'

Vladimir Bukovsky has been summonsed to appear at court on the following charges:

•

Five counts of making an indecent photograph of a child contrary to section 1(a) of the Protection of Children Act 1978, on or before 28 October 2014

•

Five counts of possession of indecent photographs of children contrary to section 160 Criminal Justice Act 1988, on or before 28 October 2014

•

One count of possessing a prohibited image contrary to section 62 (1) of the Coroners and Justice Act 2009

Ms Hopkins continued: 'Vladimir Bukovsky will appear before Cambridge Magistrates' Court on 5 May 2015.

May I remind all concerned that Mr Bukovsky has a right to a fair trial. It is extremely important that there should be no reporting, commentary or sharing of information online which could in any way prejudice these proceedings.'

The appellant makes no complaint about most of the contents of the Charging Announcement. He accepts that he had been charged with contravention of the statutory provisions which were referred to and that, on this basis, the charging announcement was substantially true. However, in respect of the underlined words (the 'words complained of') he contends that the separate defamatory 'sting' was that the word 'making' in the context of indecent images had the natural and ordinary meaning that he was involved in the production of such images, photographs or film, from which the natural inference would be drawn that he was directly involved in, or at least present at the scene of, the sexual abuse of children.

Specifically, the appellant pleaded in the Particulars of Claim:

9.

The natural and ordinary meaning of the words 'making indecent images of children', 'making and possessing of indecent images of children', and 'making an indecent photograph of a child' is that the person was present at the scene of a sexual abuse of a child, and/or an act or acts of indecency being committed on a child, and photographed that abuse and/or acts of indecency.

10.

By reasons of the premises, the words of the aforesaid statement taken as a whole meant in their natural and ordinary meaning that:

(a)

It was alleged against the Claimant that he was present at the scene of a sexual abuse of a child, and/or an act or acts of indecency being committed on a child, and made at least five photographs of that abuse and/or acts of indecency; and/or

(b)

It was alleged against the Claimant that at least on five occasions he was present at the scene of a sexual abuse of a child, and/or an act or acts of indecency being committed on a child, and photographed that abuse and/or acts of indecency; and

(c)

The allegations set out in subparagraphs (a) and/or (b) were credible, and the evidence in support thereof was sufficiently convincing to justify a prosecution of the Claimant.

The pleading also advanced a plea based on an innuendo meaning:

11.

Further, the reference in the aforesaid statement to 'categories A, B and C, as defined by the Sentencing Council Guidelines' read in the context with the whole of the statement meant, and was understood to mean by way of legal innuendo, that sexual abuse and/or acts of indecency referred to in subparas 10(a) and 10(b) above included penetrative sexual activity and/or sexual activity with animals and/or acts of sadism.

Particulars of extrinsic facts.

12.

The Sentencing Council Definitive Guidelines, in the version of force from 1 April 2014, contains a section titled, 'Indecent photographs of children / Protection of Children Act 1978 (section 1)' and on page 76 therein define 'Category A' for the purposes of 'Production' as 'Creating images involving penetrative sexual activity / Creating images involving sexual activity with an animal or sadism'. The Claimant will rely upon the inference that some of the readers of the aforesaid statement were, or subsequently made themselves, aware of the said definition.

In addition to the libel claim, the appellant advanced claims for misfeasance in public office and breaches of his rights under articles 6 and 8 of the European Convention on Human Rights. As well as accepting that he only had a claim against the CPS if the words bore the meanings that he pleaded, the appellant also acknowledged that, if the libel claim failed, the other heads of claim would fall away.

The CPS pleaded their own Lucas-Box meanings, see Lucas-Box v. News Group Newspapers Ltd [1986] 1 WLR 147, in respect of (a) the natural and ordinary meaning of the words complained of and (b) an innuendo meaning. In respect of these meanings, it relied on statutory defences available under the Defamation Act 2013: substantial truth (s. 2) and public interest (s.4).

The task of the Judge on the application before him was to determine the (sole) natural and ordinary meaning of the words complained of; and there was no issue before him as to how meaning was to be determined. The Judge referred to the well-known summary contained in the judgment of Sir Anthony Clarke MR in Jeynes v. News Magazines Limited [2008] EWCA Civ 130 at [14]:

(1)

The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any 'bane and antidote' taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …' … (8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.' Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73.

This summary, together with the qualifications identified by the Judge in relation to points (2) and (7), set out an authoritative approach to determining meaning, at least so far as it went.

However, it omits an important principle which applies in the present case: namely, the context and circumstances of the publication, see Gatley on Libel & Slander (2013) 12th Ed. §3.30.

In Nevill v. Fine Art & General Insurance Co [1897] AC 68 one of the issues on appeal was whether the contents of a letter were capable of bearing a defamatory meaning. At p.72. Lord Halsbury LC said that he was unable to know in what sense any ordinary reasonable man would understand the words complained of to be defamatory of the plaintiff.

In saying that, of course, it is necessary to take into consideration, not only the actual words used, but the context of the words, and the persons to whom the communication was made.

In Duncan & Neill on Defamation (2015) 4th Ed, the following passage appears at §5.25:

In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.

A materially similar passage appeared in the 2nd edition and was said by Lord Bridge of Harwich in Charleston v. News Group Newspapers Ltd [1995] 2 AC 65 at p.70D to represent 'a long and unbroken line of authority'.

It is right to record that Mr Callus recognised that the context and circumstances of the publication are material to the determination of meaning, as did the Judge. It is convenient then to consider what part it played in the Judge's determination.

The central issue was the defamatory meaning of the words complained of in the Charging Announcement; or, to put it another way, what kind of sex offences would the reader have taken the words complained of in the Charging Announcement to suggest?

The appellant's primary contention was that it bore the meaning set out in §§9 and 10 of the Particulars of Claim; while the CPS's primary contention was that the words read in context meant no more than that he had been charged with the particular specified offences: 'making' indecent photographs or images contrary to s.1(1)(a) of the Protection of Children Act 1978, as amended ('the 1978 Act').

The Judge began his analysis by referring to s.1(1)(a) of the 1978 Act which provides, subject to certain other provisions, that it is an offence for a person 'to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child…' The offence may be committed either by 'taking' or by 'making' a photograph, which for these purposes includes a copy, see s.7 of the 1978 Act. The offence of 'making' an indecent photograph contrary to these provisions can as a matter of law be committed in a variety of ways that do not involve being present at the scene. The offence can be committed by wilful acts such as downloading, caching, and even enlarging a thumbnail on screen while web-browsing, see DPP v. Atkins [2000] 1 WLR 1427, Bowden (Jonathan) [2001] QB 88, and Smith (Graham Westgarth) [2003] 1 Cr. App. R. 13. These decisions of the Court of Appeal (Criminal Division) make clear that applying the natural and ordinary meaning of the verb 'to make', includes 'to cause to exist; to produce by action; to bring about'. Thus, a charge may be preferred under s.1(1)(a) of the 1978 Act without any need to show that a defendant took a photograph, or was present at the scene of the indecent act depicted in the photograph, or that he was involved in any way other than (for instance) by downloading the indecent image.

The Judge went on to express his conclusion as follows:

27.

In my judgment, the words complained of did not bear the meanings attributed to them by Mr Bukovsky. Their natural and ordinary meaning 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.

I would interpret the first part of (2) as intended to reflect the evidential test in the CPS Full Code for prosecuting: 'the prosecution is satisfied that there is sufficient evidence against a defendant for a realistic prospect of success.'

The Judge then set out the various steps that led him to this conclusion. In summary:

28.

The reaction of the ordinary reasonable reader to the wording of the Charging Announcement would take into account its nature and its source. It would be recognised for what it was: a formal public announcement by a public authority of a considered decision to bring specific criminal charges under specified statutory provisions against a named individual.

…

30.

The ordinary reader would … [appreciate] that the decision-making of the CPS is a highly rule-governed activity. They 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 … [T]he public at large knows that words can have special and precise meanings when used in statutes, and by lawyers. They know that this can apply to words that seem quite ordinary, such as 'making' and 'possession'. I do not accept that the ordinary reasonable reader would treat the ordinary English words in this announcement in the same way as they would treat them if spoken or written by a journalist, or by a friend in ordinary conversation.

31.

The phrase 'making [a] photograph' is in any event not one that ordinary people would readily recognise as a description of pressing the button on a camera. It looks like technical usage, not everyday language ... In my view, this unusual use of language would put the ordinary reader on guard.

32.

Everybody knows that the process of making, that is creating or producing, a photograph can involve a wide range of activities. A person 'makes' a photograph if they develop it from film, for example, or if they participate in the process of printing it from a digital image. There is nothing in the Charging Announcement to indicate that in levelling this charge at this defendant the CPS were alleging any particular role, or adopting any particular meaning of 'making', limited to or involving the physical presence of the defendant at the indecent scene in the guise of photographer. In my judgment, the reasonable reader, not avid for scandal, would not infer that this is what the CPS was alleging. It would not be naïve for a reader to say to themselves or another that it was clear from the Charging 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 …

The Judge acknowledged that some readers might think that the appellant played the role of the photographer; but considered that this would represent supposition or speculation; and that there was nothing in the wording to justify the conclusion that this was the CPS's case against him. At best, it would represent a 'strained, forced or unreasonable' interpretation of the Charging Announcement.

In an attractively developed argument Mr Callus submitted that the hypothetical ordinary and sensible reader would ask themselves what it was that the appellant was said to have done. They would not understand that the word 'making' had a particular meaning in the context of a criminal statute which included downloading. They would assume that if someone 'makes' a photograph or image, they were directly involved and, to adopt the language of the Particulars of Claim, 'present at the scene of a sexual abuse of a child, and/or an act or acts of indecency being committed on a child, and photographed that abuse and/or acts of indecency.'

Mr Millar QC for the CPS submitted, in effect, that the Judge was right for the reasons he gave.

I am unable to accept the appellant's submissions. At the risk of paraphrasing the Judge's careful and persuasive analysis, it seems to me that the following points are material to meaning.

First, a crucial feature of the words complained of was the context of the publication, or what the Judge described as its nature and source. This was an announcement by a prosecuting authority of a decision to prosecute the appellant 'over indecent images of children', in which the words that were used (and of which complaint is made) directly reflected the statutory language. Secondly, the ordinary and reasonable reader would attach weight to the references to the statutes under which the charges were raised. Thirdly, he or she would understand that words can have a special meaning when used in statutes and by lawyers. Fourthly, for this reason, Mr Callus's distinction between a 'legal' meaning and an 'ordinary and natural' meaning falls away. Fifthly, the phrase 'making a photograph' is not an ordinary and natural usage, and reinforces an impression that the phrase is being used in a technical sense. Sixthly, to the extent that the phrase 'making a photograph' is more generally understood, it does not carry any necessary implication that the maker was present at the time the photograph or image was made.

In my view, and for the reasons he gave, the Judge was right to hold that the words complained of did not bear the meaning for which the appellant contended.

In the light of this conclusion, it is not strictly necessary to deal with a further issue that arose in the course of argument. In brief, Mr Callus submitted that the relevant test on an appeal on meaning was whether the decision of the lower court was wrong, see CPR 52.11(3)(a), now CPR 52.21(3)(a). In contrast. Mr Millar submitted that this court should only reject the meaning found by the Judge if it was 'clear' that some other meaning applied. A passage in Duncan & Neill (referred to above) at §33.03 describes both arguments in relation to the determination of meaning (a different approach is adopted in a determination made under CPR 53 PD 4 that a statement is capable or incapable of bearing a particular meaning). I have added the letters A and B to §33.03 so as to distinguish the two approaches:

[A] A determination of the actual meaning of a statement is a determination of fact that an appeal court is bound to overturn if the judge's determination was 'wrong'. Since determination of meaning is often based on the consideration of a single document, an appellate court, it might be said, is as well placed as the first instance judge to decide the issue and should simply substitute its own view if it disagrees with the judge. [B] On the other hand, it might be said, determination of meaning is nevertheless an exercise that involves the evaluation and weighing of various parts of a statement, such that an appeal court should normally accord a degree of deference to the first instance judge and interfere only when 'quite satisfied' that a judge's determination of meaning was wrong and that some other meaning clearly applied. It appears that this more deferential approach is the one likely to be adopted.

Proposition B is supported by passages in a number of judgments of this court, starting with the judgment of the court given by Sir Thomas Bingham MR in Skuse v. Granada Television Ltd [1996] EMLR 278 at p.287, principle (8).

The Court of Appeal should be slow to differ from any conclusion of fact reached by a trial judge. Plainly this principle is less compelling where his conclusion is not based on his assessment of the reliability of witnesses or on the substance of their oral evidence and where the material before the appellate court is exactly the same as was before him. But even so we should not disturb his finding unless we are quite satisfied he was wrong (emphasis added).

However, it is to be noted that, when it came to the expression of the Court of Appeal's conclusion on the facts of the case, it was expressed as follows:

We are satisfied that the natural and ordinary meaning which the judge gave to the material complained of was wrong.

In Cammish v. Hughes [2012] EWCA Civ 1655, Arden LJ, delivering the judgment of the court, addressed the point at [31]:

As to the test that this court should apply, although this court has the same documents as were available to the judge, and the meaning depends on documents, we apply the dictum of Sir Thomas Bingham MR, which we have quoted. The determination of meaning does not depend solely on the documents, but on an evaluation of those words in their context. In those circumstances, we consider that we should not depart from the judge's meaning unless it is clear that some other meaning applies (emphasis added).

In the event, the Court of Appeal agreed with the Judge's finding on meaning of the words complained of, see [34] of the judgment in that case.

In Cruddas v. Calvert [2013] EWCA Civ 748, the issue arose again in the light of an argument raised by counsel for the respondent which Longmore LJ articulated at [18]:

Mr Browne relied heavily on a supposed principle that the meaning of the words was a jury question (and thus a question of fact) and that the judge was the best person qualified to reach the right conclusion which should not be 'second guessed' by this court.

Longmore LJ referred to Skuse v. Granada and to Cammish v. Hughes, and acknowledged the force of the submission that the Court of Appeal should not second guess the judge.

19.

There is, of course, considerable force in this argument. On the other hand, imputations of criminal conduct are extremely serious and, if an appellate court thinks that an article just does not bear that imputation, it should say so. It is an important aspect of the law of libel that it should be open to a defendant to justify a lesser defamatory meaning than that alleged by a claimant if that is the right meaning to be given to the article.

20.

In Slim v Daily Telegraph [1968] 2 QB 157, the Court of Appeal was faced with a not totally dissimilar situation to the present case. The claimant solicitor said that letters published by the defendant carried the imputation that he had brought improper pressure to bear on council employees and that he was not fit to remain a solicitor. Paull J sitting alone held that that was the natural and ordinary meaning of the words used. This court held that the letters were what was then called fair comment on a matter of public interest. But both Diplock LJ (page 178E) and Salmon LJ (page 181E) said the relevant letter did not mean that Mr Slim had behaved unprofessionally or in any way dishonourably, Salmon LJ also said this (at pages 186-7):

No doubt, even when a libel action has been tried by a judge alone an appellate tribunal may sometimes approach the case by considering, as a matter of law, whether the words complained of are capable of the defamatory meaning which they have been found to bear. If they are, the appellate tribunal will not lightly interfere with the judge's finding of fact. If, however, the appellate tribunal is satisfied that the judge's finding of fact is wrong, it is its duty to reverse him. There is no sensible reason why a judge's finding of fact in a libel action should be more sacrosanct than in any other action. For the reasons I have indicated. I am as satisfied as I can be that the judge's decision was wrong.

The Court disagreed with the judge's conclusion on meaning in that case, with Longmore LJ expressing his conclusion at [22] as follows:

I am therefore satisfied that the words used in the articles do not carry the imputations that [the claimant] was criminally corrupt and if in order to come within Sir Thomas Bingham's eighth principle in Skuse, I have to go this far I will say that I am not merely satisfied but 'quite satisfied.'

As can be seen, in none of the cases in which the heightened test of review was suggested was such a test determinative of the result. It seems to me that a requirement that the Court of Appeal must be 'quite satisfied' that a first instance decision is wrong or 'clearly wrong' is problematic. If the Court concludes that a decision on meaning is wrong, why should it not proceed on that basis? The passage in Slim v. Daily Telegraph (referred to above) suggests that it should. A conclusion that the Court is satisfied that the meaning was wrong, but not clearly wrong, or that it was not 'quite satisfied' (whatever that may mean) is unsatisfactory and contrary to principle.

It seems to me that the better approach is for this Court to adopt a position somewhere between Duncan & Neill's propositions A and B. It should proceed cautiously before substituting its own views on meaning and only do so when satisfied that the judge is wrong, not least 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.

I would dismiss the appeal.

I agree.

I also agree.