ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
(The Hon Mr Justice Warby)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SIMON
LORD JUSTICE PETER JACKSON
| VLADIMIR BUKOVSKY
CROWN PROSECUTION SERVICE
Gavin Millar QC and Aidan Eardley (instructed by Government Legal Department) for the Respondent
Hearing date: 5 October 2017
Crown Copyright ©
Lord Justice Simon:
Vladimir Bukovsky to be prosecuted over indecent images of children
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.'
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.
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.
The determination of meaning
(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  AC 68 per Lord Halsbury LC at 73.
In saying that, of course, it is necessary to take into consideration, not only the actual words used, but the context of the words, and the persons to whom the communication was made.
In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
The hearing before the Judge
27. In my judgment, the words complained of did not bear the meanings attributed to them by Mr Bukovsky. Their natural and ordinary meaning was that:
(1) Mr Bukovsky was to be charged with offences of making indecent photographs of children contrary to section 1 of the Protection of Children Act 1978, possessing indecent photographs of children contrary to section 160 of the Criminal Justice Act 1988, and possession of a prohibited image contrary to section 62 of the Coroners and Justice Act 2009;
(2) The evidence in support of such charges was sufficiently convincing to justify a prosecution of Mr Bukovsky, and it was in the public interest to do so.
28. The reaction of the ordinary reasonable reader to the wording of the Charging Announcement would take into account its nature and its source. It would be recognised for what it was: a formal public announcement by a public authority of a considered decision to bring specific criminal charges under specified statutory provisions against a named individual.
30. The ordinary reader would … [appreciate] that the decision-making of the CPS is a highly rule-governed activity. They would expect the words chosen by the CPS to be precise, and to follow the contours of the applicable law. They would attach weight to the references to the statutes under which the charges were laid … [T]he public at large knows that words can have special and precise meanings when used in statutes, and by lawyers. They know that this can apply to words that seem quite ordinary, such as 'making' and 'possession'. I do not accept that the ordinary reasonable reader would treat the ordinary English words in this announcement in the same way as they would treat them if spoken or written by a journalist, or by a friend in ordinary conversation.
31. The phrase 'making [a] photograph' is in any event not one that ordinary people would readily recognise as a description of pressing the button on a camera. It looks like technical usage, not everyday language ... In my view, this unusual use of language would put the ordinary reader on guard.
32. Everybody knows that the process of making, that is creating or producing, a photograph can involve a wide range of activities. A person 'makes' a photograph if they develop it from film, for example, or if they participate in the process of printing it from a digital image. There is nothing in the Charging Announcement to indicate that in levelling this charge at this defendant the CPS were alleging any particular role, or adopting any particular meaning of 'making', limited to or involving the physical presence of the defendant at the indecent scene in the guise of photographer. In my judgment, the reasonable reader, not avid for scandal, would not infer that this is what the CPS was alleging. It would not be naïve for a reader to say to themselves or another that it was clear from the Charging Announcement that the CPS was alleging some form of participation in the creation of an indecent photograph, but unclear precisely what the factual allegation was …
The argument on the appeal
Conclusion on meaning
The standard of appellate review on meaning
[A] A determination of the actual meaning of a statement is a determination of fact that an appeal court is bound to overturn if the judge's determination was 'wrong'. Since determination of meaning is often based on the consideration of a single document, an appellate court, it might be said, is as well placed as the first instance judge to decide the issue and should simply substitute its own view if it disagrees with the judge. [B] On the other hand, it might be said, determination of meaning is nevertheless an exercise that involves the evaluation and weighing of various parts of a statement, such that an appeal court should normally accord a degree of deference to the first instance judge and interfere only when 'quite satisfied' that a judge's determination of meaning was wrong and that some other meaning clearly applied. It appears that this more deferential approach is the one likely to be adopted.
The Court of Appeal should be slow to differ from any conclusion of fact reached by a trial judge. Plainly this principle is less compelling where his conclusion is not based on his assessment of the reliability of witnesses or on the substance of their oral evidence and where the material before the appellate court is exactly the same as was before him. But even so we should not disturb his finding unless we are quite satisfied he was wrong (emphasis added).
We are satisfied that the natural and ordinary meaning which the judge gave to the material complained of was wrong.
As to the test that this court should apply, although this court has the same documents as were available to the judge, and the meaning depends on documents, we apply the dictum of Sir Thomas Bingham MR, which we have quoted. The determination of meaning does not depend solely on the documents, but on an evaluation of those words in their context. In those circumstances, we consider that we should not depart from the judge's meaning unless it is clear that some other meaning applies (emphasis added).
Mr Browne relied heavily on a supposed principle that the meaning of the words was a jury question (and thus a question of fact) and that the judge was the best person qualified to reach the right conclusion which should not be 'second guessed' by this court.
19. There is, of course, considerable force in this argument. On the other hand, imputations of criminal conduct are extremely serious and, if an appellate court thinks that an article just does not bear that imputation, it should say so. It is an important aspect of the law of libel that it should be open to a defendant to justify a lesser defamatory meaning than that alleged by a claimant if that is the right meaning to be given to the article.
20. In Slim v Daily Telegraph  2 QB 157, the Court of Appeal was faced with a not totally dissimilar situation to the present case. The claimant solicitor said that letters published by the defendant carried the imputation that he had brought improper pressure to bear on council employees and that he was not fit to remain a solicitor. Paull J sitting alone held that that was the natural and ordinary meaning of the words used. This court held that the letters were what was then called fair comment on a matter of public interest. But both Diplock LJ (page 178E) and Salmon LJ (page 181E) said the relevant letter did not mean that Mr Slim had behaved unprofessionally or in any way dishonourably, Salmon LJ also said this (at pages 186-7):
No doubt, even when a libel action has been tried by a judge alone an appellate tribunal may sometimes approach the case by considering, as a matter of law, whether the words complained of are capable of the defamatory meaning which they have been found to bear. If they are, the appellate tribunal will not lightly interfere with the judge's finding of fact. If, however, the appellate tribunal is satisfied that the judge's finding of fact is wrong, it is its duty to reverse him. There is no sensible reason why a judge's finding of fact in a libel action should be more sacrosanct than in any other action. For the reasons I have indicated. I am as satisfied as I can be that the judge's decision was wrong.
I am therefore satisfied that the words used in the articles do not carry the imputations that [the claimant] was criminally corrupt and if in order to come within Sir Thomas Bingham's eighth principle in Skuse, I have to go this far I will say that I am not merely satisfied but 'quite satisfied.'
Lord Justice Peter Jackson
Lord Justice Gross