Bento v The Chief Constable of Bedfordshire Police  EWHC 1525
In January 2006, the body of a young Polish woman, Kamila Garsztka, was found in a lake in Bedford. Forensic pathologists were unable to ascertain the cause of death. In July 2007, her boyfriend, the Claimant, was unanimously convicted of her murder. The conviction was quashed by the Court of Appeal in February 2009 and a retrial was ordered. This was on the basis of the “unsatisfactory nature” of the CCTV evidence relied upon by the Crown to prove that Kamila had been carrying a bag on the night she died; the bag having been found at the Claimant’s flat later the same night.
On 7th July 2009, shortly before the retrial, the Crown Prosecution Service discontinued the case against the Claimant and he was thereafter formally acquitted. On 9th July 2009, Bedfordshire Police issued the press release which formed the basis of this libel action. According to the Claimant, the press release alleged that he was guilty of murdering Kamila.
The Defendant’s defence in justification was that the Claimant probably did kill Kamila. The Claimant’s case was that Kamila must have committed suicide. The Defendant also relied upon a defence of qualified privilege. The principal argument on privilege was that the press release had been issued in pursuance of “the duty of the police to keep the local public informed about the status of an investigation into a serious crime”, and the local public had a corresponding right and interest to hear what the police had to say. The Defendant also submitted that, following an earlier broadcast about the case on BBC Newsnight, the press release had been issued among other things in response to an anticipated attack by media, and, relying on the case of Bhatt v Chelsea and Westminster NHS Trust (unrep. 16th October 1997), that qualified privilege extends to such responses.
Summary of the decision
In Bean J’s judgment, it was clear beyond reasonable doubt from the CCTV evidence that Kamila had not been carrying a bag on the night in question (para 79). Consequently, the Defendant’s case on justification became “difficult if not impossible” (para 83).
It was held that while either of the ‘homicide’ or ‘suicide’ scenarios was possible, the latter was “by far the more probable of the two” (para 91).
Bean J’s conclusion on justification was as follows: “while it is possible that Mr Bento killed Kamila, the balance of probabilities is that he did not and that she committed suicide” (para 92). Consequently, the defence failed.
While the Court accepted that there is a high public interest in maintaining confidence in the criminal justice system, he did not accept that the interest is served: “by encouraging the police to issue statements indicating their opinion that the decision of the CPS not to pursue a prosecution… is wrong” (para 98).
With regard to balancing the Claimant’s Article 8 rights with the Article 10 rights of the public to receive information, it had not been necessary or proportionate to say that the Claimant had probably killed Kamila (para 100).
The Court doubted whether the decision in Bhatt, which also pre-dated the Human Rights Act 1998, was correct, and saw no policy reason to extend qualified privilege to people who believe they are about to be criticised and decide to publicly retaliate first (para 103).
If Bhatt was correct, it was held that qualified privilege would have to be confined to cases in which the statement in question was (a) in reasonable anticipation of an imminent attack on the conduct of the maker of the statement; and (b) limited to a “proportionate rebuttal” (para 104).
The Court did not accept that the police had reasonably anticipated a public attack on their conduct. Though there had been a previous Newsnight item, in its judgment it had not expressly criticised the police investigation as opposed to the Crown’s original CCTV expert. In any event, it was held that a “proportionate rebuttal” did not extend to saying that the Claimant was probably guilty of murder (paras 105-106).
The defence of qualified privilege therefore failed.
The Court awarded £125,000 in damages. There was no evidence of the press release having attracted national coverage, and while a justification defence had been pursued, this only aggravated the damages to a limited extent given the “courtesy and restraint” with which it was done (paras 108-111).
The judgment is available here.