Bukovsky v Crown Prosecution Service

In determining defamatory meaning, the court applies the perspective of the ordinary reasonable reader to the publication as a whole. The reader is not naïve or avid for scandal, but need not always select the least derogatory meaning. The nature and source of a publication matter. A formal charging announcement by a public authority, identifying specific statutory offences, may cause readers to understand words in their technical statutory context. The word “making” in a charge of making indecent photographs does not, without more, imply that the accused was present when the depicted abuse occurred or personally took the photographs. Such an inference may be speculation or a strained interpretation. The court also recognised a limited true innuendo concerning category A offences under the applicable sentencing guidelines.

Vladimir Bukovsky brought claims in libel, misfeasance in public office and breach of the Human Rights Act 1998 against the Crown Prosecution Service. The claims concerned a press release announcing that he would be prosecuted for making and possessing indecent images of children and possessing a prohibited image.

The action was ordered to proceed with meaning as a preliminary issue. The claimant contended that the announcement suggested that he had been present at, and photographed, child sexual abuse, and that the evidence justified prosecution for that conduct. The CPS contended that the announcement conveyed only that he was to be prosecuted for the specified statutory offences, supported by sufficient evidence and the public interest. The central issue was the defamatory meaning conveyed by the announcement.

1. Meaning. The claimant’s pleaded natural and ordinary meanings were not conveyed. The announcement meant that he was to be charged with specified offences under section 1 of the Protection of Children Act 1978, section 160 of the Criminal Justice Act 1988 and section 62 of the Coroners and Justice Act 2009, and that the evidence was sufficiently convincing to justify prosecution in the public interest.
2. The governing approach was that in Jeynes v News Magazines Limited [2008] EWCA Civ 130. The publication had to be read as a whole, by an ordinary reasonable reader who was not naïve, unduly suspicious or avid for scandal. The reader would take account of the formal nature and public-authority source of the announcement, and of its references to specified statutory provisions.
3. The ordinary reader would understand that statutory and legal language can have technical meanings. “Making” an indecent photograph was unusual as everyday language and would put the reader on guard against assuming that it meant pressing a camera button. The wording did not identify any particular role or require an inference that the defendant had been present at the depicted scene. Such an inference would be speculative and, at best, a strained, forced or unreasonable interpretation.
4. The criminal authorities established that “making” under section 1(1)(a) could include downloading, caching or digitally storing an image, without presence at the scene or involvement in the underlying abuse. The statutory meaning did not itself determine the factual meaning in defamation, but it informed the context in which the announcement would be read.
5. A limited true innuendo was established for readers familiar with the relevant sentencing guidelines: the reference to category A offences conveyed an accusation of offences involving penetrative sexual activity, sexual activity with an animal or sadism. The meaning issue was otherwise resolved in favour of the CPS. The summary judgment application and proposed interim declaration of falsity were not determined.

First-instance determination of meaning as a preliminary issue. The judgment does not state any earlier appellate decision.