Update on the Bukovsky Trial

I just received this press release from Vladimir Bukovsky. You may recall that he sued Britain’s Crown Prosecution Service for libel over a statement it issued in April announcing that he was being charged with “making” child pornography. Bukovsky strenuously denied the allegations, and took the unusual step of issuing a writ against the CPS in the high court in London. Unfortunately — but unsurprisingly — the court has found against him:

The CPS has made no allegations of Vladimir Bukovsky’s involvement in sexual abuse of children, the High Court has ruled today. The judgement of Mr. Justice Warby in Mr. Bukovsky’s libel claim against the CPS states: “Mr Bukovsky has not been charged with or accused of being a participant in or present at the scene of any child sex abuse, or of taking photographs of such abuse. The CPS has not alleged, and does not allege, that he was guilty of or reasonably suspected of any such conduct.

The judgement is a victory for the CPS, who has staunchly denied that it “libelled” Mr. Bukovsky in its press-release on April last year.

The press-release alleged that 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”, and five separate counts of “possession” of such photographs. This Monday, barrister Greg Callus, representing Mr. Bukovsky, argued in Court that “to an ordinary and reasonable reader of the mainstream media outlets who published the Charging Announcement, “making” a photographic image means using some kind of camera equipment to produce a 2-D depiction of something that the photographer is witnessing in their immediate environment.

However, Aidan Eardley, representing the CPS, argued that the CPS press-release did not libel Mr. Bukovsky, since it did not suggest Mr. Bukovsky was accused of being involved in sexual abuse of children. “A reasonable reader would recognise that the charges were described in legal language and conclude (and conclude no more than) that the Claimant was accused of having committed the elements of the specified offences, whatever they might be”, Mr. Eardley submitted on behalf of the CPS.

Mr. Justice Warby agreed with the CPS interpretation of its press-release. His judgement reads: “I agree with Mr Eardley that the public at large know 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 … It is possible, I suppose, that some reader might think that Mr Bukovsky played the role of the photographer. But that would represent supposition or speculation.

Mr. Bukovsky’s lawyers are now preparing an appeal against the judgement.

Mr. Bukovsky said today: “This is simply a whitewash. The CPS allegations against me were repeated by all the media, shocked the whole world, ruined my reputation – and now I am told that they were never made! This is outrageous. For 15 months they tried to insinuate through all sorts of media outlets, that I am some kind of a pedophile and now they say: Oh, no, we did not mean that. Nothing sexual, strictly business. Only unreasonable reader could see such meaning. And yet, even now they make no attempt to correct their announcement, it is still on their website in exactly the same language which, as they now must know for sure, is at best controversial. I am still charged with “making” those images, although it was just established in court that I did not participate in their production.”

From the Vladimir Bukovsky Center website, here’s a timeline of events:

  • 11 Jul 2006 The Times publishes a letter by Vladimir Bukovsky and high-ranking Russian secret service defector Oleg Gordievsky, titled Licence to Kill. It claims Putin has two new laws that, when used together, make it legal in Russia for the government to kill critics abroad as “extremists.”
  • 1 Nov 2006 Mario Scaramella, an Italian security expert testifying on Russian infiltration into Italy’s government, is poisoned but lives.
  • 1 Nov 2006 Alexander Litvinenko is fatally poisoned in London, dies three weeks later.
  • 2 Dec 2006 The Guardian reports that Scaramella had shown Litvinenko a “hit list” leaked from FSB email, with himself, Litvinenko and Bukovsky among the five men listed.
  • 2 Nov 2007 Gordievsky is poisoned in Surrey.
  • 23 March 2013 Boris Berezovsky, an ex-pat Russian billionaire also on the list, is found dead in his home. The death is ruled a suicide.
  • 22 Jul 2014 Litvinenko Inquiry into his murder announced. Bukovsky is summoned as a witness.
  • 28 Oct 2014 Law enforcement seizes Bukovsky’s laptop at his home.
  • 17 Mar 2015 Bukovsky testifies in a Litvinenko Inquiry hearing. He explains new Russian laws, recounts death threat phone calls to Litvinenko which he overheard, and concludes, “I am pretty sure it was done on orders from Kremlin.” This was the conclusion of the Inquiry as well.
  • 27 Apr 2015 Crown Prosecution Service publishes press release announcing charges against Bukovsky: “making [sic] and possessing indecent images.” This is the source of the libel trial.
  • 24 Aug 2015 Bukovsky sues CPS for libel over the wording of its press release.
  • 16 May 2016 Bukovsky’s criminal trial is postponed until December 2016.
  • 25 July 2016 Bukovsky v. CPS libel trial begins.

And here is the full story, in their words:

On October 28, 2014, Cambridgeshire police raided the home of Vladimir Bukovsky, a leading Russian dissident who had lived in Cambridge since 1976. They took his laptop away.

Bukovsky, then 72 years old, had been seriously ill, yet was scheduled to testify in the large-scale inquiry into the murder of Alexander Litvinenko, a former Russian FSB officer who had defected, and was providing the West with top secret information on FSB operations and the Russian regime. Litvinenko was fatally poisoned in London, when he drank radioactive polonium slipped into a cup of tea. Polonium does not set off regular radiation detectors. He would have died of mysterious causes, had doctors not run special tests to detect its presence.

On March 17, 2015, Bukovsky, still ill, testified at the Royal Courts of Justice in London that he had been with Litvinenko when his friend received death threats from former FSB colleagues. Remember what happened to Trotsky, one said. Bukovsky also testified that, as he had written for The Times, President Putin had passed two new laws that, when put together, made it legal within Russia for Putin to order Russian agents to kill opponents living in other countries.

Moreover, Litvinenko had been shown an email leaked from FSB that listed five enemies of the state who needed to be dealt with, by force if necessary. One was Litvinenko. Another was Mario Scaramella, an Italian academic and espionage expert involved in his government’s Mitrokhin commission investigation into Russian infiltration of Italian government. He would also test positive for polonium poisoning soon, but would live. The third target was Boris Berezovsky, an exiled Russian billionaire living in England who subsequently claimed twice that he had fled assassination plots. Berezovsky was found dead in his home in 2013, an apparent suicide.

The fifth name on the list was Vladimir Bukovsky.

There’s a word in Russian that means a lot but doesn’t translate well: provokatsia. “Provocation,” its literal translation, doesn’t mean here what it does there: A stealthy, fraudulent act designed to harm a person, organization, or entire country, while concealing the identity of the perpetrator.

Provokatsia takes many forms: Planting evidence on a troublesome adversary. Polonium in a cup of tea. Bombing apartment buildings to make it look like the Chechens did it. In Russia,provokatsia is standard operating procedure. It’s not considered crazy there to believe that politician Boris Nemtsov was gunned down by agents of the United States last year, to cast suspicion on Putin. After all, the thinking goes, it’s what we would do.

On April 27, 2015, a month after Bukovsky’s testimony, Britain’s Crown Prosecution Service — CPS — issued a press release that CPS had “authorized the prosecution of Vladimir Bukovsky, 72, for five charges of making indecent images of children, five charges of possession of indecent image of children and one charge of possession of a prohibited image.”

Supporters of Bukovsky immediately thought: provokatsia. Why make a man a martyr, when you can make him an outcast whose books no one will ever read again? It’s a modern, Internet-savvy version of the old practice of declaring dissidents mentally ill, as was done to Bukovsky in the 1960s.

CPS’ wording, while culled from law, is suspicious. “Making indecent images …” is the literal wording of Britain’s Protection of Children Act 1978, as amended in 1995: “It is an offence for a person … to make, any indecent photograph … of a child.” Courts have decided that placing a copy on one’s computer from the Internet or elsewhere constitutes “making” a photo. That’s how prosecutors like it — CPS’ own legal guidance page touts all the ways that multiple “making an image” charges can be applied to someone who, say, hits a site that launches popup windows.

But of course, every non-lawyer who reads CPS’ online statement with its “making indecent images” goes away believing Bukovsky was personally snapping photos of children. Reverting that image in the public mind to the “they found files on his computer” will be difficult, maybe impossible. Especially in Russia, where national news services pounced on the opportunity to mistranslate CPS’ press release even further into Russian, both online and on TV. More than one reported falsely that CPS claimed to have evidence Bukovsky had been photographing children himself.

Bukovsky promptly sued CPS for libel over the use of the word “making” without an explanation that it was legal jargon for having a copy on one’s computer. His goal, he has said, is not to win money, but to clear his name, which has been smeared in the media, and to call out that the whole episode smacks of provokatsia.

High Court, which has refused other libel cases against Crown Prosecution Services for listing charges, agreed to hear Bukovsky’s case.

At first, the court refused to place the libel hearing ahead of the criminal trial’s May date, prompting Bukovsky to go on an old-fashioned dissident hunger strike to no avail. But in May, the criminal trial was adjourned to December 2016. That places it after the libel hearing, and provides ample time to perform computer forensics on Bukovsky’s laptop to determine if it was hacked.

CPS is expected to be unrepentant. A victory will reprimand CPS, but more important, a judgment that CPS published a libelous document will publicly raise the question of whether a trove of abhorrent content, found on a man of lifelong integrity’s laptop, might simply be more clever provokatsia for a writer than poisoning him.

CPS was, indeed, unrepentant. What do you make of its legal reasoning? I find it outrageous: No, the public at large doesn’t know that “making indecent images” might have a special legal meaning, nor do they assume it. The first thing everyone with whom I’ve discussed this has said is, “Yes, but he didn’t just have them on his computer — he was charged with making them.” When I show them the statute in question and point out that the term compasses “having the file on your computer,” they’re astonished.

Here’s the full text of the ruling, which includes such passages as this:

  1. 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. Mr Callus argues that some professional photographers use such language to describe what they do. I am sure that is so. But that does not help one decide what the ordinary reader would take away from the use of the term to describe a criminal charge against Mr Bukovsky. In my view, this unusual use of language would put the ordinary reader on guard.
  2. 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. It is possible, I suppose, that some reader might think that Mr Bukovsky played the role of the photographer. But that would represent supposition or speculation. There is nothing in the wording to justify the conclusion that this was the CPS’s case. At best it would represent a “strained, forced or unreasonable” interpretation of the Announcement.

Do you think it’s a “strained, forced or unreasonable” interpretation of the phrase? Empirically, I’ve tested it: One hundred percent of the people I’ve asked, even after I’ve explained the case, say, “Yes, but he didn’t just have photos — he made them.” Everyone I’ve asked understands that photos may readily be planted on a computer, and are particularly apt to be planted on your computer if you’re an enemy of Vladimir Putin. But once they see the word “made,” they think, “Oh, there must be a fire with that smoke.”