Bukovsky v Crown Prosecution Service

The natural and ordinary meaning of an alleged libel is determined through the eyes of the hypothetical reasonable reader. The court must consider the publication as a whole, including its nature, source, context, mode of publication and intended readership.

A reasonable reader may recognise that ordinary words have specialised meanings when used by a public authority in a formal announcement which identifies the governing statutory provisions. On appeal, the court should approach a judge’s determination of meaning cautiously. It may substitute its own conclusion when satisfied that the judge was wrong; there is no additional requirement that the decision be clearly wrong.

The Crown Prosecution Service issued a formal announcement that it had authorised the appellant’s prosecution for offences concerning indecent images of children. The appellant alleged that references to his having “made” indecent images meant that he had been present at, and had photographed, the sexual abuse of children.

Warby J determined as a preliminary issue that the announcement conveyed only that the appellant had been charged under the specified statutory provisions and that the evidential and public-interest requirements for prosecution had been met. He therefore struck out the libel claim: [2016] EWHC 1826 (QB). The associated claims for misfeasance in public office and breaches of Convention rights depended upon the pleaded defamatory meaning and consequently also fell away.

The central issue was whether the announcement bore the appellant’s pleaded meaning. The court also considered, on an obiter basis, the proper appellate standard for reviewing a judge’s determination of meaning.

1. Appeal dismissed. The announcement did not mean that the appellant had been present at, or had photographed, the sexual abuse of children. Warby J had correctly determined its natural and ordinary meaning and had therefore properly struck out the claim.

2. The context and circumstances of publication are material to meaning. This was a formal announcement by a prosecuting authority of a decision to bring identified charges under specified statutory provisions. The reasonable reader would attach weight to its nature and source, and to the statutory references. Such a reader would appreciate that apparently ordinary words may have specialised meanings when used in statutes and by lawyers.

3. The phrase “making a photograph” was unusual in ordinary speech and indicated technical usage. Under section 1(1)(a) of the Protection of Children Act 1978, read with section 7, making an indecent photograph can include acts such as downloading or otherwise causing a copy to exist. It does not require the accused to have taken the original photograph or to have been present at the depicted scene. Nothing in the announcement identified the appellant’s alleged factual role. A conclusion that he had acted as photographer would therefore be supposition rather than a permissible implication.

4. The reasonable reader, who is not avid for scandal, would understand that the prosecution alleged some form of participation in creating or producing indecent images but would not infer a particular role. The distinction advanced between the legal meaning and the natural and ordinary meaning of “making” fell away once the announcement was read in its proper context.

5. Although unnecessary to the disposition, the court addressed appellate review of meaning. An appellate court should act cautiously before substituting its own view because meaning is often impressionistic and specialist first-instance judges are experienced in applying the governing principles. Nevertheless, the governing question under rule 52.21(3)(a) of the Civil Procedure Rules 1998 is whether the decision was wrong. Once satisfied that it was wrong, the appellate court need not additionally be “quite satisfied” or find that another meaning “clearly” applies.

1. Court of Appeal (Civil Division): By [2017] EWCA Civ 1529, unanimously dismissed the appeal and upheld the determination of meaning and strike-out.
2. High Court, Queen’s Bench Division: Warby J held that the announcement did not bear the appellant’s pleaded meaning and struck out the claim: [2016] EWHC 1826 (QB).