It is not uncommon, in the wake of a high profile criminal case resulting in an acquittal, or where a person convicted of an offence has the conviction quashed, to see a police spokesman make a statement. This might be to the effect that “the matter remains open but we are not looking for anyone else in connection with the matter” or words to a similar effect. In light of the decision of Mr Justice Bean in Bento v The Chief Constable of Bedfordshire Police  EWHC 1525 (QB), I suggest that police forces across the UK will require to exercise more care in future in commenting on such an event.
In this tragic case, Mr Bento, a Portuguese national, was convicted of murder at Luton Crown Court on 25th July 2007, and sentenced to life imprisonment. He was convicted of killing his girlfriend, Kamila Garsztka, a Polish lady, on 13th December 2005. Her body was found in Priory Lake in Bedford on 24th January 2006. The issue for the trial was whether Mr Bento was responsible for the death, or whether it had been a suicide.
Mr Bento appealed to the Court of Appeal which allowed him to bring fresh evidence to contradict that of a forensic video analyst whose evidence at the trial had been seen as crucial to the conviction. This evidence, not contradicted by expert evidence at the trial, was that Kamila, as Mr Justice Bean refers to her throughout the judgement, had been shown on CCTV footage on the evening of her disappearance carrying her favourite handbag, which was later found in her flat. This was used by the prosecution as evidence that her bag had been taken from her by Mr Bento after she had been killed, and brought back to the flat by him. After all, if Kamila had the bag before her death, but had not, as was agreed, ever returned to her flat, how could the bag have made it back?
The Court of Appeal quashed the conviction in February 2009 when the Crown Prosecution Service accepted that the conviction could not stand, in light of the new evidence regarding the CCTV analysis. The Court granted the CPS leave to mount a new prosecution. The Lord Chief Justice, Lord Judge, giving the judgment of the court, said:
“We have considered the question of a new trial. It seems to us essential to emphasise that the evidence in relation to the CCTV footage, the reconstruction and the expert evidence arising from it is not the only evidence demonstrative of guilt. Without the evidence related to the CCTV footage and the way in which the Crown wished the matter to be considered, the Crown would have lost a significant piece of evidence in support of its case. However, there is, in our judgment, ample evidence for the case to proceed to trial and for the matter to be left for a jury to consider. In those circumstances it seems to us that justice requires that there should be an order for a new trial. We shall make such an order.”
In July 2009, the CPS decided not to mount a fresh prosecution, and accordingly Mr Bento remained an innocent man, as he had been since the quashing of the conviction that February. At a brief court hearing, the CPS offered no evidence and Mr Bento was formally acquitted.
On 9th 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.”
Mr Bento pursued a claim for damages for libel against the Chief Constable, arguing that he had been defamed by the statement. Bedfordshire Police defended the case, arguing firstly that the statement was justified and secondly, even if not, that it was privileged.
The Particulars of Claim argued that in their natural and ordinary meaning the words complained of meant and were understood to mean “the Claimant was guilty of murdering Kamila and wrongly escaped justice as a result of confusion in regard to the expert evidence”.
The response by the police was:-
“In their natural and ordinary meaning the words complained of meant (1) that the decision of the CPS to discontinue the prosecution against the Claimant was wrong because there was sufficient evidence to justify proceeding with his retrial in the reasonable expectation that he would be convicted of killing her; and/or (2) that the evidence against him was such that the Claimant remained the prime suspect. In both (or either) of those meanings the words complained of are true in substance and in fact.
For the avoidance of doubt, the Defendant’s case in justification is that the Claimant probably killed Kamila, and that this was either murder or manslaughter.”
Mr Justice Bean determined “the meaning of the words complained of, so far as relevant, is that (a) a jury had already found that the Claimant had murdered Kamila; (b) the evidence as it stood in July 2009 showed that he probably killed her, which was sufficient to justify proceeding with the retrial; (c) the CPS decision to offer no evidence was therefore wrong.”
The case then proceeded to see if the defences of justification, and privilege were made out. Then days of court time were taken up dealing with the matter which, very unusually for a civil claim, was to a large degree a re-trial of the murder case.
To succeed in the defence of justification, the Police had to show that Mr Bento was responsible for Kamila’s death. Before that the court had to determine the standard of proof necessary for justification to be made out. Normally in a civil case, the standard of proof is on the balance of probabilities. Mr Justice Bean rejected the argument that, in a case of this nature, “beyond reasonable doubt” was the required standard.
He commented as follows:-
“In re D (Secretary of State for Northern Ireland intervening)  1 WLR 1499 Lord Carswell approved observations of Richards LJ in R(N) v Mental Health Review Tribunal (Northern Region)  QB 468:
“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to proved to a high degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.“
“In my opinion this paragraph effectively states in concise terms the proper state of the law on this topic. I would add one small qualification, which may be no more than an explanation of what Richards LJ meant about the seriousness of the consequences. That factor is relevant to the likelihood or unlikelihood of the allegation being unfounded, as I explain below……[A] possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffmann’s example of the animal seen in Regent’s Park), the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.“
He then went on to say, after commenting on concessions made by Counsel for the Police that:-
“It follows that I cannot be sure that the Claimant killed Kamila, and if I were a one-man jury deciding the criminal case my verdict would be “Not Guilty”. But that is not the question I have to decide.”
Mr Justice Bean then proceeded to analyse the evidence of the various witnesses in detail. I do not propose to do so here. I should say though that his finding as regards the CCTV footage which had been crucial in the original conviction was that the film did not show Kamila carrying a bag at all! There were disputed interpretations of the footage. As the judge said, “ As the case of Professor Sir Roy Meadow reminds us, a court must be careful not to be mesmerised by the confidently expressed views of a senior and distinguished expert.”
He concludes his assessment of the evidence by considering the alternative theories, suicide and homicide. He states:- “Either of these scenarios is possible. But the suicide scenario is by far the more probable of the two. That far greater probability is not outweighed by the circumstantial evidence, even of the flowers incident. 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.”
He then turns to the question of privilege. From a legal, as opposed to the human interest, angle, this is the more interesting issue.
“The Defendant’s principal argument on qualified privilege is that the press release was issued in pursuance of what Mr Rampton (Counsel for the police) 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”. He accepted that any such duty and right must be balanced against the right to reputation of the Claimant who was convicted of the crime but has since been acquitted. 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.”
In considering the submissions of the Police on the first part of the privilege defence, namely the need to keep the public advised and maintain public c confidence in the police, Mr Justice Bean said:-
“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 Defendant could perfectly well have issued a statement saying any or all of the following: (a) we pursued a thorough investigation into this case (b) a jury convicted Mr Bento of her murder; (c) that conviction was set aside on appeal, for reasons which did not involve any criticism of the police; (d) it is not our decision as to whether the case should be retried; (e) no other suspect has ever been identified, but the real issue was and is whether Kamila was killed or committed suicide; (f) we are disappointed for her family that there has been no resolution of the question of how she died; (g) we are not closing our files. That would have protected its own interests without defaming Mr Bento.
“The Defendant’s submissions accept that it would not have been necessary or proportionate for the purposes of balancing Mr Bento’s Article 8 rights with the public’s Article 10 rights to say that he was guilty of Kamila’s murder. I consider that the same applies to a statement whose meaning is that he probably killed her.”
Dealing with the argument that the Police expected to be attacked in the media over its handling of the case, Mr Justice Bean accepted that the position in English law was that “it is recognised at common law that a person may 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 is that a person who has been attacked publicly has a legitimate right or interest in defending himself against it, and the [readers or viewers] of the original attack have a corresponding interest in knowing his response to it. The response has to be proportionate to the original attack in that it should not be made more widely than the attack or include irrelevant statements.”
He went on to consider the issue of the “pre-emptive” response, indicating that he believed that the authority for the proposition that a “reply” of that nature did have qualified privilege was wrong:-
“I 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. Mr Tomlinson (Counsel for Mr Bento) also points out that the decision pre-dates the Human Rights Act, and thus takes no account of the duty of a public authority to respect an individual’s Article 8 right to reputation.
“If, however, Bhatt v Chelsea and Westminster NHS Trust (unrep., 16 October 1997) is correct, qualified privilege under this heading must in my view be confined to cases where the defamatory statement is: (a) in reasonable anticipation of an imminent attack on the conduct of the maker of the statement; and (b) limited to a proportionate rebuttal of that anticipated attack.”
“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.”
Finally he considered the question of damages.
“The press release was e-mailed to various local media. There is no evidence of it having attracted national coverage, although it is a matter of judicial knowledge that a news release published in (for example) the Bedfordshire section of the BBC news website can be accessed by anyone who is interested enough to look for it. The pursuit of the justification defence at trial aggravates the damages to some extent, as Mr Rampton accepted, although I consider that this should be only to a limited extent in view of the courtesy and restraint with which it was done.
“Taking these factors into account the proper award is one of £125,000.”
As the BBC reported yesterday, “In a statement, Bedfordshire Police said they accepted the judgement and their insurers would pay the damages and Mr Bento’s court costs.”
This case should be a salutary one for the police and indeed for prosecutors when commenting on cases where they have not obtained a conviction. As Mr Justice Bean identified in the passage higher up the page, there were a great many things the police could have said in fulfilment of its duty to re-assure and inform the public, and at the same time not accuse Mr Bento again of the murder.
In a Scottish context, I am not aware of any similar case being pursued here, although I think that the legal principles applied would be broadly similar.
However, in a week when Strathclyde Police took to Facebook to keep the public advised regarding the progress of the detention and subsequent arrest of Andy Coulson, and this generated the usual likes, dislikes and comments for which Facebook is known, the case of the unfortunate Mr Bento should serve as a warning to the police an authorities generally that they should only say what is necessary, and should not allow their own disagreement with the verdict to influence what they say.
Some years ago, I was in conversation with a police officer regarding a famous case where the accused was acquitted of serious offences. The policeman’s observation was that there was lots of evidence to prove the accused was guilty, but the prosecution had not been allowed to use it. I did not get into a discussion about admissibility of evidence and the reason why this evidence would have been excluded, but that is they type of case where the “guilty” going free might lead the police to an injudicious comment.