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Neutral Citation Number: [2012] EWHC 1525 Case No: HQ10D01015 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/06/2012 Before : MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - Between : Amilton Nicolas Bento Claimant - and - The Chief Constable of Bedfordshire Police Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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 Hearing dates: 24th-27th and 30th April, 1st-3rd and 8th-9th May 2012 - - - - - - - - - - - - - - - - - - - - - Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. ............................. MR JUSTICE BEAN MR JUSTICE BEAN BENTO V CHIEF CONSTABLE OF BEDFORDSHIRE Approved Judgment POLICE Mr Justice Bean : 1. On 24th January 2006 the body of Kamila Garsztka was found in Priory Lake, Bedford. It is clear in retrospect that it had been there since the evening of 13th December 2005 when Kamila (as everyone called her at trial, and as I shall call her) disappeared. The Claimant, her boyfriend, a man of previous good character, was arrested and later charged with her murder. Following a trial in the Crown Court at Luton before Calvert-Smith J and a jury, he was convicted on 25th July 2007 by a unanimous verdict reached after two days of deliberation. For reasons which I shall set out later in this judgment, a crucial part of the prosecution case was the evidence of a forensic video analyst, Mr Casey Caudle, expressing his opinion that in CCTV footage from the evening of 13th December 2005 Kamila can be seen carrying her favourite handbag. No contradictory expert evidence was adduced by the defence at trial. 2. Mr Caudle subsequently committed suicide. In 2008 the Court of Appeal (Criminal Division) (“CACD”) allowed fresh evidence to be adduced on appeal contradicting the opinion of Mr Caudle. Once this evidence was admitted by leave of the CACD it plainly threw into question the safety of the conviction. So it was that when a renewed application for leave to appeal against conviction came before the CACD on 26th February 2009 the Crown Prosecution Service accepted that the conviction should be quashed. The Crown sought an order for a retrial: I am told that the defence did not argue against such an order. 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.” 3. In July 2009 the CPS decided not to proceed with a retrial. At a brief hearing in the Crown Court the prosecution offered no evidence and a verdict of not guilty was recorded. On 9th July 2009 the 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. MR JUSTICE BEAN BENTO V CHIEF CONSTABLE OF BEDFORDSHIRE Approved Judgment POLICE 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.” 4. Mr Bento claims that the press statement is defamatory of him. The Chief Constable resists the claim on the alternative bases of justification and qualified privilege. 5. On 6th February 2012 Tugendhat J ordered that the trial should be before a judge sitting without a jury. An appeal against that decision by the Chief Constable was dismissed by the Court of Appeal on 3rd April 2012. Meaning 6. The Particulars of Claim argue that in their natural and ordinary meaning the words complained of meant and were understood to mean that “the Claimant was guilty of murdering Kamila and wrongly escaped justice as a result of confusion in regard to the expert evidence”. 7. The Defendant’s pleaded response to this is as follows: “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.” 8. I reject the second of the Defendant’s proposed meanings, in so far as it differs from the first and amounts only to saying that the Claimant was the prime suspect. He obviously was the prime suspect in the sense that no other candidate for prosecution has ever been identified; but the press release clearly goes further than that, and on behalf of the Chief Constable Mr Richard Rampton QC did not press for that MR JUSTICE BEAN BENTO V CHIEF CONSTABLE OF BEDFORDSHIRE Approved Judgment POLICE meaning with much enthusiasm. Mr Hugh Tomlinson QC for the Claimant accepted that the effect of his pleaded meaning and Mr Rampton’s first meaning was very similar. 9. Neither side sought to draw any distinction between “the Defendant probably killed Kamila” and “there was evidence that the Defendant killed Kamila which a trial judge would have been required to leave to the jury under the principles of R v Galbraith”. 10. I find that 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. It was common ground that any distinction between murder and manslaughter could make no difference; and, for reasons which I shall set out later, any distinction between manslaughter and accidental killing by the Claimant could make no substantive difference either. Justification: the standard of proof 11. There is no dispute that where justification is pleaded as a defence to a defamation claim the burden of proof is on the Defendant. As to the standard of proof, Mr Tomlinson referred me to the decision of Rougier J in Halford v Brookes [1992] PIQR 175. In that case the Claimant, the mother and administratrix of the estate of a 16 year old girl, alleged that her daughter had been murdered by one or both of the Defendants. The claim was for damages for battery. Rougier J decided that: “… where the burden of proof is concerned it is my view that I should adopt the equivalent of the criminal standard… I have proceeded, as indeed Mr Scrivener [counsel for the plaintiff] invited me to, 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.” The judge went on to hold that he was sure that both Defendants were party to the murder of the deceased. Strictly speaking therefore, his decision as to the standard of proof was not essential to the result, since the Claimant would have succeeded whatever the standard of proof; and indeed was reached on the basis of a concession by leading counsel for the plaintiff. 12. Whether or not this authority was good law in 1991, it cannot in my judgment survive the subsequent decisions of the House of Lords in re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and re D (Secretary of State for Northern Ireland intervening) [2008] 1 WLR 1499. In re D Lord Carswell approved observations of Richards LJ in R(N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468: “Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application.

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