Amilton Bento, 31, sued Bedfordshire Police over a press release the force issued in July, 2009 about the case which started with the discovery in January, 2006, of the body of 26-year-old Kamila Garsztka in Priory Lake, Bedford, six weeks after Bento reported her missing.
In July 2007, Bento was convicted of murdering Ms Garsztka.
But the Court of Appeal quashed the conviction in February 2009 on the basis of the “unsatisfactory nature” of evidence that CCTV footage showed that she was carrying her favourite handbag – which was found at Bento’s flat after her disappearance – as she walked by the side of the lake where her body was found.
In July 2009, shortly before the re-trial was due to start, the Crown Prosecution Service discontinued the case, and Bento was formally acquitted.
Two days later, Bedfordshire Police issued the press release, which Bento said meant he was guilty of murder and had wrongly escaped justice as a result of confusion in regard to expert evidence.
Bedfordshire Police said the press release meant that there was sufficient evidence to justify proceeding with the re-trial in the reasonable expectation that Bento would be convicted.
The force maintained that Bento probably killed Ms Garsztka, that her death was either murder or manslaughter, and said it had a duty to publish the release in relation to providing information to the public and to defend its conduct in investigating her death.
But Mr Justice Bean, who heard the case at the High Court without a jury, today rejected its defences of justification and qualified privilege.
Mr Bento, who now lives in Portugal, his homeland, was not in court for the ruling.
His counsel, Hugh Tomlinson QC, had told the judge that Ms Garsztka was last seen by friends and relatives in December 2005 before she went to Brighton for the evening, at which time there was evidence that she was not in a normal state of mind at that time.
She returned to Bedford, and stayed the night at Mr Bento’s flat. His evidence was that he left her at the flat when he went to work the following morning, and never saw her again.
That evening a couple out walking along the shore of Priory Lake in Bedford found Ms Garsztka’s coat, scarf and trainers placed neatly by the shore, and alerted police.
CCTV coverage showed that that evening Ms Garsztka had been walking at the lake, a cold and deserted spot.
Her body was not found until six weeks later, when it was discovered floating in the lake by a group of children having canoeing lessons.
Mr Tomlinson had told Mr Justice Bean that although police put up “murder” posters, the evidence that Ms Garsztka had been murdered was non-existent, with pathologists saying the cause of death was medically unascertainable but consistent with drowning.
He went on:
“If Bento was involved, events must have taken place in a very narrow time window of two or three minutes, and there was no evidence that he was anywhere near the lake that night.
“Bedford, like most English towns and cities, is full of CCTV cameras and no CCTV camera captured Bento going to or coming from the lake.
“The defendant’s case must be that, as a matter of remarkable skill or good luck, he managed to avoid every working CCTV camera in town.“
There was also no evidence that Mr Bento, a man of good character, had ever been violent to anybody or had any motive to attack or kill Ms Garsztka.
“Those points, we say, add up to a very simple answer – he didn’t do it.”
Expert evidence for the police was that a “shadow” on CCTV footage showed that Ms Garsztka had carried her favourite handbag – which was found back at Mr Bento’s flat – while at the lake.
But evidence for Mr Bento from one of the world’s leading CCTV experts – who had trained the police expert who testified – was that the images in fact clearly showed that she had not had her bag with her when she was by the lake.
Mr Justice Bean said that while it was possible that Mr Bento killed Ms Garsztka, “the suicide scenario is by far the more probably of the two“.
“My conclusion is that while it is possible that Mr Bento killed Kamila, the balance of probabilities is that he did not and that she committed suicide. The defence of justification therefore fails.”
The judge said Bedfordshire Police’s principal argument on qualified privilege was that the press release was issued in pursuance of what its QC, Richard Rampton, had described as “the duty of the police to keep the local public informed about the status of an investigation into a serious crime; and the right and interest of the local public to be given this information”.
Mr Rampton, the judge said, accepted that any such duty and right must be balanced against the right to reputation of Mr Bento, who was convicted of the crime but subsequently acquitted.
Mr Justice Bean said:
“The alternative argument is that the press release was protected by privilege because it was distributed in defence or rebuttal of an anticipated attack in the media about the police’s handling of the investigation into Kamila’s death.”
He went on:
“I accept that there is a high public interest in maintaining confidence in the criminal justice system. That public interest underlies much of my working life and that of any judge who sits in the criminal courts.
But I do not accept that that public interest is served by encouraging the police to issue statements indicating their opinion that the decision of the CPS not to pursue a prosecution (or, for that matter, the decision of a judge that a defendant has no case to answer) is wrong because the individual concerned is or is probably guilty.
On the contrary: such statements reduce confidence in the criminal justice system, as well as seriously damaging the right to reputation of the individual.“
The force could have issued a statement saying, for example, that it pursued a thorough investigation into the case, a jury convicted Mr Bento of her murder but the conviction was set aside on appeal for reasons which did not involve any criticism of the police, that it was not the force’s decision as to whether the case should be retried, that no other suspect was ever identified, but that the real issue was and is whether Ms Garsztka was killed or committed suicide, and that the force was disappointed for her family that there was no resolution of the question of how she died, but was not closing its files.
“That would have protected its own interests without defaming Mr Bento,” Mr Justice Bean said.
Bedfordshire Police, the judge said, had also argued that it was recognised that at common law a person could publish, in good faith, false and defamatory statements about another in reply to an attack by that other, and as a defence to that attack.
The rationale was that a person who was attacked publicly had a legitimate right or interest in defending himself, and readers or viewers of the original attack had a corresponding interest in knowing his response to it, although the response had to be proportionate to the original attack, and should not be made more widely than the attack or include irrelevant statements.
But the trigger for the press release which led to Bedfordshire Police issuing the press statement about which Mr bento complained was a telephone call from the BBC asking if the force has a picture of Ms Garsztka.
A senior police press officer had accepted that if the BBC was going to criticise the police on the Newsnight programme – which had carried criticism about the case in February 2009, at the time of Mr Bento’s successful appeal – it would invariably have given the force the opportunity to put its side of the story.
“I therefore do not accept that the police reasonably anticipated a public attack on their conduct.
Even if I am wrong about that, a proportionate rebuttal of that anticipated attack would have been limited to explaining what the police had done, and would not have extended to saying that Mr Bento was probably guilty.
“Accordingly I reject the defence of qualified privilege.“
He awarded Mr Bento damages of £125,000, saying that the pursuit of the justification defence at trial had aggravated the damages to some extent, but “only to a limited extent in view of the courtesy and restraint with which it was done”.
Amilton Nicolas Bento v Chief Constable of Bedfordshire Police
Neutral citation:  EWHC 1525
Queen’s Bench Division, Mr Justice Bean
Hearings: April 24-27, 30, May 1-3 and 8-9; Decision: June 1
Hugh Tomlinson QC and Sara Mansoori, instructed by Hughmans, for the claimant;
Richard Rampton QC, Catrin Evans and Hannah Ready, instructed by Berrymans Lace Mawer LLP, for the defendant.
This post originally appeared on Media Lawyer, the indispensable subscription service from the Press Association covering all aspects of media law. It is reproduced with permission and thanks.