Vladimir Bukovsky (Appellant Claimant) v Crown Prosecution Service (Respondent Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lord Justice Peter Jackson,Lord Justice Gross |
| Judgment Date | 13 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1529 |
| Docket Number | Appeal No: A2/2016/3283 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 October 2017 |
[2017] EWCA Civ 1529
Lord Justice Gross
Lord Justice Simon
and
Lord Justice Peter Jackson
Appeal No: A2/2016/3283
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
(The Hon Mr Justice Warby)
[2016] EWHC 1826 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Greg Callus (instructed on Direct Access) for the Appellant
Gavin Millar QC and Aidan Eardley (instructed by Government Legal Department) for the Respondent
Hearing date: 5 October 2017
Introduction
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.
Background
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 determination of meaning
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...
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