The trial of Amilton Bento’s libel claim against the Chief Constable of Bedfordshire begins at the High Court in London today before Bean J.  While the attempts of libel defendants to fight off claims by justifying what they have said often result in the claimant being put through the wringer at trial (the situation in the recent case of Cairns v Modi [2012] EWHC 756 (QB)), the defence here is at the extreme end of the spectrum: the meaning which the Defendant seeks to prove is that the Claimant, who does not currently stand convicted of any offence, is probably a murderer.

The Claimant was convicted of the murder of his girlfriend Kamila Garsztka on July 25, 2007. Her body had been found in a lake at a Marina in Bedfordshire six weeks after he reported her missing to police.  A CCTV image which was said to contain footage of her carrying a shoulder bag on the day of her disappearance was central to the conviction; the bag was found at the Claimant’s flat and it was alleged that he had wiped her messages and numbers in an attempt to make her disappearance look like a suicide.

In 2009, the Claimant’s conviction was quashed by the Court of Appeal, due to the “unsatisfactory nature of the evidence”, specifically the CCTV footage, relied on by the prosecution at trial. A retrial was ordered, but the CPS discontinued the case just beforehand. In the wake of critical coverage of the police in a Newsnight item, and with further adverse comment in prospect, the Defendant responded by issuing a press release about the decision to discontinue, with which the police disagreed, on July 9 2009.

The Defendant accepts that the press release means that the evidence agaisnt the Claimatn was such that he remained the prime suspect for the killing Ms Gartsztka. As well as justification, the Defendant relies on qualified privilege, in that he had a duty to publish the press release, both in relation to providing information to the public, and to defending the conduct of the police in investigating her death.

On the face of it this is a libel claim that is suitable for a trial by jury, in that what the Defendant has to prove is the kind of matter that would usually be dealt with in front of a jury at the  Crown Court, and in that the extensive evidence in the case will revolve around the cause of Ms Gartszka’s death. But Tugendhat J ruled on February 6 that it would be by judge alone. The complexity of the defence of qualified privilege, a “developing area of the law”, and of how exactly it intersects with justification here mean that the case would be unsuitable for the now apparently defunct phenomenon of a libel jury trial.   An appeal against his decision was dismissed by the Court of Appeal on 3 April 2012.

Justification and the standard of proof

The Defendant has to prove his defence to the civil standard, i.e. that the Claimant ‘probably’ killed Ms Gartszka. However, the prosecution in a criminal case seeking to prove the same allegation must, of course, do so to the criminal standard, making the jury ‘sure’ of guilt. There is an obvious tension between these two standards in this claim, and it is one which the judge at trial  will have to resolve.

The unusual situation of a judge in a civil case deciding whether a party is guilty of murder has arisen before: in Halford v Brookes ([1992] P.I.Q.R. P175) Rougier J stated that he adopted the equivalent of the criminal standard, and proceeded

“on the basis that no-one, whether in a criminal or a civil court, should be declared guilty of murder, certainly not such a terrible murder as this, unless the tribunal were sure that the evidence did not admit of any other sensible conclusion”.

It is hard to see how a judge could do otherwise – the standard which must be met in any finding of criminal liability is especially appropriate where the reputational and other consequences of a judgment against one of the parties are so serious.

Even if the right standard of proof is found to be the civil one, the law has developed to modify not the standard itself, but rather the requirements for the quality of the evidence needed to prove a serious allegation. The orthodox approach is that there is only one civil standard of proof, rather than a higher or lower point on the scale of probabilities, but it can be applied flexibly. As Lord Nicholls said in Re H (Minors)(Sexual Abuse: Standard of Proof) ([1996] AC 563 586D-H)

“the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability”.

The judicial contortions on the subject, and repeated restatements that there is only one “finite and unvarying” standard (the House of Lords protests a bit too much here), indicate that this is a tricky area. In any event, the fact that the issue here is whether or not the Claimant committed a murder means that there is a high bar for the Defendant to get over to succeed on justification.

Qualified privilege

The defence of qualified privilege depends on a reciprocal, or common, duty or interest between the publisher and the person to whom the statement is published. Since a press release by definition provides information to the world at large, if the defence is to succeed the ‘duty’ context within which the publication here must be found to have occurred is that of the police to provide information to the public.

Publications of defamatory allegations by the police have been considered pre-HRA, but last year’s case of Clift v Slough Borough Council ([2010] EWCA Civ 1484) surveyed the qualified privilege landscape in relation to the duties of public authorities under s6 of the HRA, and claimants’ Article 8 right to reputation. The Court of Appeal held that a proportionality test was appropriate for such publications, that is to say that they must be necessary for a legitimate aim and proportionate to it, and that, in the end, the rights of the individual must be balanced against the interests of the community.

Whereas publication in Clift was limited to council employees and contractors, the publication by a public authority here was intended for a far broader audience: media inquiries about the CPS decision to discontinue prosecution were referred by police to the press release. The context of very public criticism of the police’s handling of the case by the media may have created a situation in which the police felt that they had to defend their actions, and put clear water between themselves and the CPS. In light of Clift, one question for the judge will be whether an assertion that the Claimant was probably guilty of his girlfriend’s murder was a proportionate means of doing so.

The trial is due to last two weeks.

Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.