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:
- 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.
- 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.”