First published on the Brett Wilson Media Law Blog on 19 September 2016
In Bukovsky v Crown Prosecution Service  EWHC 1926 (QB), a Soviet dissident resident in England, was suing the Crown Prosecution Service (‘CPS’), the principal public prosecuting authority in England and Wales, for libel, misfeasance in public office, and breach of the Human Rights Act concerning a press release announcing that he was to be prosecuted for a number of criminal offences. The action came before Mr Justice Warby for a preliminary trial as to the meaning of the words complained of.
Mr Bukovsky was charged with five counts of making an indecent photograph of a child, contrary to section 1(a) of the Protection of Children Act 1978, five counts of possession of indecent photographs of children contrary to section 160 Criminal Justice Act 1988, and one count of possessing a prohibited image contrary to section 62(1) of the Coroners and Justice Act 2009. Mr Bukovsky pleaded not guilty to the offences and the matter was set down for trial. On 27 April 2015, the CPS announced the charges on its website and its blog, stating, inter alia, that the CPS had concluded there was sufficient evidence and it was in the public interest to prosecute. The announcement was subsequently widely reported in the mainstream media. In August 2015, Mr Bukovsky launched his action against the CPS.
In factual terms, the CPS’ case against Mr Bukovksy is that he accessed and was in possession of child pornography. However, it was argued on behalf of Mr Bukovsky in the libel proceedings, that the words ‘making an indecent photograph of a child’, would cause the reader to think that Mr Bukovsky was suspected of being present at the scene of sexual abuse of a child, and making photographs of that abuse, and that such an allegation was a credible one with sufficient evidence to justify his prosecution. It was conceded on behalf of Mr Bukovsky that the Court of Appeal (Criminal Division) had held that the words ‘to make’ as found in the Protection of Children Act 1978, included ‘causing to exist; to produce by action; to bring about’ and that the section 1(1)(a) offence could therefore be committed by acts such as downloading and caching images. However, it was argued that this was a matter of law, specifically statutory construction, and that the issue in libel proceedings was the factual meaning. As a matter of fact, ‘making a photograph’ would be taken to mean using camera equipment to produce a depiction of something that the photographer is witnessing, and the reader would note the separate treatment of ‘possession’ of the images, thus presuming there were two distinct acts.
On behalf of the CPS, it was argued that Mr Bukovsky’s argument relied on taking a few words of the announcement out of context, failed to attribute a suitable degree of general knowledge to the reader, and assumed a reader who was unduly suspicious. The CPS announcement referred to very specific offences, which, as a matter of general knowledge, can have technical meanings. Furthermore, the words ‘making a photograph’ were not natural language, and would put the reader on notice about the danger of jumping to conclusions about precisely what conduct Mr Bukovsky was accused of.
Warby J agreed that ‘in principle, the same words could have a meaning for the purposes of defamation law which is different from their technical legal meaning’ and that if the answer in the instant case was ‘inconvenient to the CPS that is nothing to the point’. However, he rejected Mr Bukovsky’s arguments. The natural and ordinary meaning of the words was simply that Mr Bukovsky had been charged with the specific offences set out, that there was evidence in support of such charges sufficient to justify a prosecution, and it was in the public interest to do so. Readers would understand that the announcement was a formal document, using technical language in reference to specific statutory offences.
Although it was not determinative in this instance, Warby J indicated that he would have otherwise accepted (albeit not without some caution) the CPS’ further submission that prosecutions for downloading child pornography had become so prevalent that, as a matter of general knowledge, readers would assume the alleged offence to be one of that variety, and that had the alleged offending involved direct participation in child abuse, this would have been clear.
An interesting case; whilst it will be a brave Claimant who brings libel proceedings against a prosecuting authority, Warby J’s remark in obiter that ‘the same words could have a meaning for the purposes of defamation law which is different from their technical legal meaning’ leaves the door slightly ajar.