Bento v The Chief Constable of Bedfordshire Police (2012 (EWHC1525)
In 2007 the Claimant was found guilty of the murder of his girlfriend. He vigorously maintained his innocence, contending that his girlfriend had committed suicide. The case had hinged on evidence provided by a witness who subsequently committed suicide. In 2008 the Court of Appeal allowed fresh evidence to be deduced on the appeal which contradicted the opinion of the witness who committed suicide. Once this evidence was admitted, it threw into question the safety of the conviction. An application for leave to appeal against conviction came before the Court of Appeal Criminal Division on 26 February 2009, when the Crown Prosecution accepted that the conviction should be quashed.
A retrial was ordered.
In 2009 the CPS decided not to proceed with the trial. They offered no evidence, and a verdict of not guilty was recorded.
On 9 July 2009, Bedfordshire Police issued a press release in the following terms:
- “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 unresolved 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.”
It was Mr Bento’s claim that the press statement was defamatory of him. The Chief Constable resisted the claim on the basis of justification and qualified privilege.
The issues in the case were:
- Was the press release defamatory of the Claimant, and if so, what does it mean ?
- Could the Defendant defend a press release with the defence of justification and qualified privilege ?
The court held that in fact the press release was defamatory.
The court held that the press statement meant:
- that a jury had already found the Claimant had murdered Kamilla;
- any evidence as it stood in July 2009 showed that he probably killed her, which was sufficient to justify a retrial; and
- CPS’s decision to offer no evidence was therefore wrong.
With regards to justification, the court then went on to consider whether on the balance of probabilities, the Claimant had killed Kamila. The Judge considered on the balance probabilities that suicide was the most likely scenario;
- “by far the more probable of the two.”
The judge stated that whilst it was;
- “possible that Mr Bento killed Kamilla, the balance of probabilities is that he did not, and that she committed suicide.”
The defence of justification failed.
The police attempted to rely on the defence of qualified privilege. The judge rejected the police’s claim. The police had argued that they had a duty to keep the public informed. The judge accepted that there was;
- “high public interest in maintaining confidence in the criminal justice situation”, he did not consider “public interest is served by encouraging the police to issue statements indicating their opinion and the decision of the CPS not to pursue a prosecution…is wrong because the individual concerned is or is probably guilty.”
The police thereafter claimed that they also had a right to respond to any attack in the press. In this case, there was an item on “Newsnight”.
The Judge did not consider as Sir Morris Drake had stated in the case of Bhatt v Chelsea and Westminster NHS Trust that
- “this form of qualified privilege extends to a statement in rebuttal of an anticipated attack.”
The Judge thought that he was wrong as to that.
The Judge said that if that case was correct, then it would have to be confined to cases where:
- In reasonable anticipation of an imminent attack on the conduct of the maker of the statement; and
- limited to a proportionate rebuttal of that anticipated attack.
In this case, Newsnight had rung up asking whether the police had a photograph of Kamila. There had been a previous item on Newsnight in February 2009, but there had been no criticism of the police. The Judge therefore thought he did not accept that the police anticipated a public attack on their conduct. He thought that if he was wrong on that, a proportional rebuttal of that anticipated attack would be limited to explain what the police had done, and would not have gone on to say that Mr Bento was probably guilty.
The Judge awarded £125,000 damages which was aggravated slightly as a consequence of the police bringing a defence of justification.
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