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Bukovsky v CPS (CA) - 5RB Barristers

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Bukovsky v CPS (CA) - 5RB Barristers Call 5RB+44 (0)20 7242 2902 Menu About us Our work People Barristers Support team Recruitment Resources Cases News Publications Articles 5RB Talks Links Contact Contact us Enquiry Visit us Urgent injunctions Complaints procedure Register for 5RB updates Barristers Cases Bukovsky v CPS (CA) Reference: [2017] EWCA Civ 1529

Court: Court of Appeal

Judge: Gross, Simon & Peter Jackson LJJ

Date of judgment: 13 Oct 2017 Summary: Defamation - Libel - Meaning - Appellate Review

Appearances: Aidan Eardley KC (Respondent) 

Instructing Solicitors: Government Legal Department for the Respondent

Facts The Claimant/Appellant (C) had been charged by the Crown Prosecution Service (CPS) on “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”. The CPS put out a press release on 27 April 2015 announcing the charges that would be brought.

C said that the single meaning of the words was that he was strongly suspected of involvement in both ‘making’ and ‘possessing’ indecent images of children, whereas the factual allegations against him were limited to alleged downloading (which, as a matter of law, can constitute ‘making’ in s.1 of the Protection of Children Act 1978).

Although pleading Not Guilty to all charges, he accepted that the press release was ‘True’ (per s.2 Defamation Act 2013) in respect of the possession offences but only on the basis that he had been so charged, and that if the words did not carry his meaning or similar, that the claim would have to be dismissed. The CPS accepted that if the words bore C’s meaning, and also carried a sting of involvement in the actual production of such images (by photographing it, or being involved in some way in capturing the images), that this would not be substantially true under s.2 Defamation Act 2013, and that the only substantive defence to be run at trial would be Public Interest, pursuant to s.4 Defamation Act 2013.

At a trial of meaning as a preliminary issue [2016] EWHC 1926 (QB), Warby J held that the words did not bear the C’s meaning, but meant that he had been charged with the statutory offences as set out in the press release, and that readers would not draw any conclusions as to ‘making’ as pleaded by C.

C appealed the determination of meaning by Warby J, with the permission given on the papers by Vos LJ.

Issue (1) Was the judge wrong to reject the C’s meaning as the single meaning as a matter of libel law?

(2) What was the appropriate test on appeal of a determination of actual meaning?

Held (1) The Judge had been correct as to the determination of meaning, and the appeal would be dismissed [29].

The eight principles summarised in Jeynes v News Magazines omitted an important principle, namely the circumstances and context of the publication (per Gatley, 12th edition, at §3.30) ([11]-[17]). Context was a crucial feature in the present case, which meant that the judge had been correct [28].

(2) The authorities (Cammish v Hughes, Cruddas v Calvert, Thompson v James) that suggested an appellate court must be ‘quite satisfied’ that the determination of meaning was ‘clearly wrong’ were doubted by the Court. While an appellate court should tread cautiously about interfering with a question of impression before a specialist judge, the test was that the appellate court should reverse a judge if ‘satisfied’ she or he was  ‘wrong’ (see Judgment [30]-[39]).

Comment The Court of Appeal has elevated the role of ‘context’ to sit alongside the other familiar principles for determining meaning (Jeynes, Skuse), but although highly-material in the present case, it may be that this is a distinction without a difference in the majority of determinations of meaning.

The question of the appellate test (where meaning has actually been determined by the judge, as opposed to on a capability assessment) is now back in line with other areas of law, per CPR r.52.21(3)(a) ‘wrong’ (see Slim v Daily Telegraph, Singh v British Chiropractic Association and more generally the Supreme Court decision in Re B [2013] UKSC 33).

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