Vladimir Bukovsky v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 28 July 2016 |
| Neutral Citation | [2016] EWHC 1926 (QB) |
| Docket Number | Case No: HQ15X03623 |
| Court | Queen's Bench Division |
| Date | 28 July 2016 |
[2016] EWHC 1926 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ15X03623
Greg Callus (instructed by Withers LLP) for The Claimant
Aidan Eardley (instructed by Government Legal Department) for the Defendant
Hearing date: 25 July 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
In this action an individual who faces criminal charges sues the Crown Prosecution Service for libel, misfeasance in public office, and breach of the Human Rights Act, in respect of a public announcement that those charges were to be brought. The announcement was made in a CPS press release issued on 27 April 2015 ("the Charging Announcement").
The claimant is Vladimir Bukovsky, well-known as a Soviet dissident who has lived in this country for many years. He is 73. His case is, in summary, that the Charging Announcement falsely suggested that he was accused of being personally involved in the sexual abuse of children: that there was sufficient evidence to justify a prosecution for being present at the scene, making or taking indecent photographs. If the Charging Announcement did bear meanings to that effect, there is no suggestion that it was true. Mr Bukovsky has not been charged with or accused of being a participant in or present at the scene of any child sex abuse, or of taking photographs of such abuse. The CPS has not alleged, and does not allege, that he was guilty of or reasonably suspected of any such conduct.
The charges Mr Bukovsky does face are different. They allege the "making" of five "indecent photographs" of children, the "possession" of five "indecent images" of children, and the "possession" of one "prohibited image" of a child. In short, the case against Mr Bukovsky is that he accessed and kept child pornography. The CPS maintains that these charges are properly brought, and supported by sufficient evidence. Mr Bukovsky denies the charges. A jury will in due course determine whether he is guilty or not guilty. These charges are serious. But it is common ground that they are significantly different from, and less grave than, charges of personal involvement in child sex abuse. It is accepted that a defence of truth could not succeed, if Mr Bukovsky is right about the meaning of the Charging Announcement.
The main answers offered by the CPS, if the Charging Announcement bore the meanings complained of, are in summary: that a public interest defence would defeat the claim in libel; that the misfeasance claim would fail as there was no wilful or reckless wrongdoing; and that the Human Rights Act claim fails for essentially the same reasons. Mr Bukovsky takes the opposite view. He has issued an application for summary judgment, on the basis that if the court agrees with his case on meaning he complains of, the CPS would have no real prospect of successfully defending any of his claims.
But none of that falls for decision at this stage. The only issue before me for decision now is whether or not Mr Bukovsky is right as to the meaning(s) of the words used by the CPS in the Charging Announcement. That issue has been listed for trial as a preliminary issue.
The case for the CPS is that the Charging Announcement did not bear the meanings complained of by Mr Bukovsky. It bore less serious meanings, to the effect that Mr Bukovsky was to be charged with certain specific offences, as identified in the Charging Announcement; and that there was sufficient evidence to prosecute him on those charges, and it was in the public interest to do so. Unsurprisingly, and consistently with their stance in the criminal proceedings, the CPS maintain that these meanings are true. Mr Bukovsky accepts that if the court agrees with the CPS on meaning his claim cannot succeed.
The Charging Announcement reads as follows:
"Vladimir Bukovsky to be prosecuted over indecent images of children
27/04/2015
[1] 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.
[2] 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.
[3] "The decision to prosecute was taken in accordance with the Code for Crown Prosecutors."
[4] 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
[5] Ms Hopkins continued: "Vladimir Bukovsky will appear before Cambridge Magistrates' Court on 5 May 2015.
[6] "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."
I have added the paragraph numbering, and placed in bold text the words of which Mr Bukovsky complains.
The Charging Announcement was published on the CPS website, and on its official blog, and a link to the blog was published on the CPS Twitter account. It remains online. The substance of the Announcement was widely republished in the media, on the websites of national newspapers including The Guardian, Daily Mail, and Daily Telegraph, and by broadcasters including the BBC and ITV. The CPS accepts responsibility for bringing about this widespread repetition of the contents of the Charging Announcement. There is no dispute that the Charging Announcement bears a meaning that is defamatory of the claimant. My task is to identify the defamatory meaning(s).
The approach of the law to the determination of meaning is well-established. It was set out by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 [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."
The second principle should not be misunderstood. It is not an instruction to the Judge; it describes a characteristic of the ordinary reasonable reader. That reader will not always select the bad meaning, but nor will they always select the less derogatory meaning: Lord MacAlpine v Bercow [2013] EWHC 1342 (QB) [66] (Tugendhat J), approved in Elliott v Rufus [2015] EWCA Civ 121 [11] (Sharp LJ). The seventh principle is strictly speaking applicable only where the issue is what meanings words are capable of bearing. That is an issue rarely contested nowadays, though it may be relevant to some defences of public interest or honest comment (see Barron v Vines [2015] EWHC 1161 (QB) [63]; Economou v de Freitas [2016] EWHC 1853 (QB) [154]–[156]). For present purposes however this principle does provide a valuable reminder of the outer limits of the exercise.
Defamation law recognises two categories of defamatory meaning. The natural and ordinary meaning is the meaning which any ordinary reasonable reader would take from the offending statement, bringing to bear their general knowledge. An innuendo meaning is one that the statement would convey to a reader who knows some relevant facts, which are not matters of common knowledge.
The Particulars of Claim set out Mr Bukovsky's case. Today, Mr Callus appears for the claimant. He did not plead the claim. That was done by a Mr Stroilov, who is not a lawyer. But as all are agreed, it was done with considerable skill. In paragraph 10 it is alleged that the words bore the following natural and ordinary meanings about Mr Bukovsky:
(a) That it was alleged against him 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) That it was alleged against him that at least on five...
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