Case Law: Bukovsky v CPS, Judge Seals File in Child Porn Libel Case – Media Lawyer

28 10 2015

_82597606_vladimirbukovskyA judge has set aside an injunction issued in a defamation case in which the Crown Prosecution Service (CPS) is being sued by veteran Soviet dissident Vladimir Bukovsky over allegations that he has been charged with making and possessing indecent images of children.

Mr Justice Blake decided at a hearing yesterday that the order, which banned the CPS from communicating to “any other party” factual allegations contained in its defence, interfered with its ability to pass on relevant information in the criminal proceedings, the Lawtel legal information website reported.

But the judge also sealed the papers in the case from public access, pending an application by Mr Bukovsky to strike out the CPS’s defence, because the claimant had a significant media profile, and foreign journalists might attempt to see the pleadings and publish the material.

Mr Bukovsky launched the libel action after the CPS authorised the decision to charge him with making and possessing indecent images of children, and issued a statement explaining the decision and the nature of the charges.

Mr Bukovsky sued for defamation and misfeasance, claiming that the statement was malicious and intended to damage his reputation, and that the reference to the alleged “making” of indecent images had an innuendo meaning that he was present when the alleged images were created.

The CPS pleaded that the statement was true, and disputed the claimed innuendo meaning.

Mr Bukovsky, Lawtel reported, applied to strike out the defence and, in without notice proceedings heard in private, obtained the order banning the CPS from communicating the part of its defence which dealt with the facts of the police investigation to “any other party”, except its legal advisors and the court.

The CPS, concerned that it would not be able to refer to the factual matters at a coming plea and case management hearing in the criminal case, applied to set aside the order on the ground that it was improperly made, and was unnecessary and disproportionate.

Held (Lawtel summary): (1) The order was plainly an interference with the liberty of the press to report civil proceedings and therefore engaged section 12 of the Human Rights Act 1998, which included a procedural restriction preventing any judicial officer from making a without notice injunction in the absence of exceptional circumstances.

There were no such circumstances in the instant case. The defendant as a public authority had no right to freedom of expression, but others had the right to receive the information in the statement; the order was an interference with that right.

The defendant should have been served with notice of the application; it would have been able to attend the hearing and inform the court of the relevant statutes, practice directions and case law on pre-publication restraints, as well as advise on ways to protect the claimant’s right to a fair trial.

(2) Section 12 (3) prevented the making of interim injunctions unless it was likely that the applicant would succeed at trial. That test had not been met.  The importance of notice was stressed in Practice Guidance (HC: Interim Non-Disclosure Orders) ([2012] 1 W.L.R. 1003 [pdf]).

Mr Bukovsky had no basis for seeking to continue the order. It was well established in defamation law that publication would not be prevented where a defendant had indicated that it would plead truth, unless that defence had no real prospect of success. There was no reason for thinking that the defendant’s defence was bound to fail.

Although the real debate was likely to be about the innuendo meaning, R v Smith (Graham Westgarth) ([2002] EWCA Crim 683, [2003] 1 Cr App R 13) had dealt with what constituted the “making” of an indecent image, R v Smith considered.

(3) Even if the pleaded defence was factually contentious and went beyond the statement, there was no need for injunctive relief against the press, whose editors were well aware of the duty not to prejudice criminal trials and of their responsibilities under the strict liability rule in the Contempt of Court Act 1981 section 1.

Section 4 of the 1981 Act meant that the press could report the instant proceedings according to the presumption of open justice, but that did not mean that it was entitled to report other matters not in the hearing, or to seek out the pleadings and publish them. That offered a substantial method of protection from the media.

(4) Even if restrictions were needed, the terms of the order went beyond anything legitimately needed pending the striking-out application. It appeared to intrude upon the defendant’s ability to communicate with relevant police officers and other legal advisors. Any injunction needed to be strictly scrutinised and limited to what was strictly necessary to do justice. The order would therefore be set aside.

(5) Although it was unlikely that a juror from the relevant area would travel to London to look at the pleadings, that eventuality could be dealt with by the criminal trial judge through case management. However, it was possible that overseas journalists might be interested in the matter and would seek to read the pleadings. As a precautionary measure, the pleadings would be sealed from the public until the striking-out hearing, which would be heard in open court. The case was not one where the sensitivity of the information required a closed hearing, and neither was the instant decision.

This article originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.


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