Allegations of murder are usually tried in the criminal courts. The recent libel claim in Bento v The Chief Constable of Bedfordshire Police [2012] EWHC 1525 (QB) is a striking exception. The case had all the ingredients of a legal thriller – a mysterious death; a quashed murder conviction; a suspect determined to clear his name and a police force convinced of his guilt. It also gave rise to interesting questions of defamation law.

At the heart of the claim lay two simple but fiercely disputed questions: Did the claimant kill his girlfriend in 2005? If he did not, were the police liable for defamation when they stated publicly, several years later, that he probably had?

In June 2012, Mr Justice Bean delivered judgment in the final instalment of this remarkable litigation. The judge found against the defendant and awarded the claimant damages of £125,000 – one of the largest libel awards in recent years. For media lawyers, Bean J’s judgment contains an interesting analysis of qualified privilege. For the police, it is an expensive reminder of the need for care when discussing criminal suspects and unsolved crimes.

The facts

On 13 December 2005 the claimant’s girlfriend, Kamila Garsztka, disappeared. Her body was discovered six weeks later in a lake near her home in Bedford. Kamila had drowned; however an expert pathologist could not determine whether she had been killed or committed suicide.

In July 2007 the claimant was tried and convicted of Kamila’s murder. A key element of the prosecution case was evidence from a forensic video analyst, who stated that CCTV footage from the night of her disappearance showed Kamila carrying her favourite handbag. This was significant, since it was common ground that the handbag was found at the couple’s house the day after Kamila disappeared. According to the prosecution, the evidence about the handbag proved the claimant was with Kamila when she died.

In 2008 the Court of Appeal allowed fresh evidence to be adduced on appeal which contradicted the video expert’s testimony. In the light of this development, the Crown Prosecution Service accepted that the murder conviction should be quashed. The Court of Appeal ordered a retrial; however in July 2009 the CPS decided not to proceed with a second prosecution. The claimant was therefore formally acquitted of Kamila’s murder.

A short while later Bedfordshire Police published a press statement regarding the CPS’s decision not to pursue a retrial:

“Bedfordshire Police were told by the Crown Prosecution Service [on] Tuesday evening that the case against Nico Bento has been discontinued.

 We are extremely disappointed on behalf of Kamila’s family, for whom this reopens a devastating chapter in their lives. The police conducted the most thorough and ethical investigation in this case and did their utmost to secure justice for the family.

 The role of the police in cases such as these is to assemble the available evidence and present it to the CPS. In this case the evidence initially presented resulted in a conviction at the Luton Crown Court where the decision of the jury was unanimous.

The CPS have now taken the view that confusion in regard to the expert evidence in this case means there is no longer a realistic prospect of conviction.

 The police investigation found no evidence whatsoever that Kamila killed herself. Therefore, as with all other unsolved murder investigations, this case will not be closed and will be continually kept under review in an effort to discover new evidence and build a stronger case.”

Judgment

The claimant brought proceedings for libel in respect of the press statement. Over the course of a ten-day hearing in April 2012, the High Court effectively retried the murder allegation.

Bean J began by determining the meaning of the impugned words. He held that the press statement meant (a) that a jury had already found that the claimant murdered Kamila; (b) that the evidence as it stood in July 2009 showed that he probably killed her, which was sufficient to justify proceeding with a retrial; and (c) that the CPS’s decision to offer no evidence was therefore wrong [10].

In the light of the ruling on meaning, the defence of justification turned on whether the police could establish on the balance of probabilities that the claimant had killed Kamila. The court heard from a number of witnesses who had testified at the earlier murder trial and received expert evidence on video analysis, forensic pathology and suicide. After reviewing all the evidence Bean J held that the suicide scenario was “by far the more probable of the two”. While it was “possible that Mr Bento killed Kamila, the balance of probabilities is that he did not and she committed suicide.” The defence of justification therefore failed [92].

The defendant also claimed the statement was protected by qualified privilege. Two alternative bases were advanced for this defence:

(a)  The duty of the police to keep the local public informed about the status of an investigation into a serious crime, and the corresponding right and interest of the local public to receive this information.

(b)  Alternatively, the press release was protected 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.

The judge rejected both arguments. In relation to (a), Bean J acknowledged the high public interest in maintaining confidence in the criminal justice system. However this was not served by encouraging the police to issue statements suggesting that the CPS were wrong not to pursue a prosecution because the individual concerned is probably guilty. On the contrary, statements like that reduce confidence in the criminal justice system [98]. In addition, the defendant accepted that it would have been a disproportionate interference with the claimant’s Article 8 rights to say that he was guilty of Kamila’s murder. The same analysis must apply to a statement that the claimant probably killed her [100].

The judge also rejected ground (b). In Bhatt v Chelsea and Westminster NHS Trust (unreported, 16 October 1997) the High Court accepted that qualified privilege could extend to a statement made in rebuttal of an anticipated attack. Bean J doubted whether that decision was correct: “I can see no policy reason to extend qualified privilege to people who believe they are about to be criticised and decide to get their public retaliation in first.” [103]. However even if Bhatt was correctly decided, Bean J held that the principle must be confined to cases where the defamatory statement is both: (i) in reasonable anticipation of an imminent attack on the conduct of the maker of the statement; and (ii) limited to a proportionate rebuttal of that anticipated attack [104].

The trigger for the defamatory statement was a call from the BBC’s Newsnight programme asking for a photograph of Kamila. A previous Newsnight broadcast in 2009 contained strong criticism of the video expert’s evidence, but no criticism of the police investigation into Kamila’s death. On the facts of the present case, the telephone call did not create a reasonable apprehension of an imminent attack on the police’s conduct. In any event, a proportionate rebuttal would have been limited to explaining what the police had done, and would not have extended to saying that Mr Bento was probably guilty [105 – 106].

Comment

Quite apart from the extraordinary facts, the judgment in Bento raises some important questions about the scope of qualified privilege.

The judge was surely correct to reject the first limb of the qualified privilege defence (based on the duty of the police to inform the public about investigations into serious crimes). A clear division of functions exists between the police and the CPS. The discretion to prosecute resides exclusively with the CPS and ought to be exercised independently from any external pressure by the police. The defendant trespassed well beyond its appropriate role when it attacked the decision not to retry Mr Bento. In these circumstances, the first ground for the defence was bound to fail.

The question whether qualified privilege should protect statements made in rebuttal of an anticipated attack is more difficult. It is well established that a victim of a public attack has a right to reply publicly, which includes a right to make statements defamatory of the attacker. The rationale for this privilege was explained (in somewhat obscure language) in Dwyer v Esmonde (1877):

“Where a party publishes charges affecting the conduct and character of another, the public at large have, as against him, such a right of judgment upon those charges as render that public interested in anything material to their judgment being just and true, and the party aggrieved, having an interest in vindicating his character, has a privilege to publish matter of vindication and defence, and all such matter as is material to the public forming such just and true judgment.”

In other words, the target of a defamatory attack has a legitimate interest in defending himself, and the audience have a legitimate interest in hearing their response. Is this rationale capable of embracing pre-emptive rebuttals as well?

It is not obvious why this type of qualified privilege should be confined to defendants who wait for the claimant (or someone else) to strike the first blow. The underlying purpose of the defence – facilitating public responses to defamatory attacks – does not depend on the precise sequence of events, and a defendant who chooses to get their retaliation in first may be no less worthy of protection than a defendant who waits before returning fire.

The criminal law recognises the possibility of pre-emptive self-defence. The law of defamation should arguably do likewise, with appropriate safeguards to prevent abuse. As Bean J recognised, the risk of trigger-happy defendants defaming with impunity can be met by a rule that limits the defence to situations where the defendant (a) reasonably anticipated an imminent attack; and (b) responded in a proportionate manner.

Conclusion

The facts of Bento are as unfortunate as they are tragic. In hindsight, the defendant’s decision to identify the claimant as a likely killer backfired spectacularly. The police were certain that they had their man, and were understandably frustrated at losing the chance to prove this before a criminal court. They responded with an ill thought-out statement which, although intended to inculpate Mr Bento, triggered litigation that had the opposite effect.

Without the libel Mr Bento would not have received a penny in compensation for his wrongful conviction. (Since the conviction was quashed within the statutory time limit, he is not eligible for compensation as the victim of a “miscarriage of justice”.) Nor could he have obtained a judicial finding that he was not responsible for Kamila’s death. For Mr Bento, therefore, Bean J’s judgment provides precious vindication in respect of one of the gravest allegations imaginable. For the police, it highlights the dangers (and potential cost) of wrongly suggesting that someone has got away with murder.

Edward Craven, Barrister, Matrix Chambers