Full case report
Bento v Chief Constable of Bedfordshire Police
Reference  EWHC 1525 (QB)
Court Queen's Bench Division
Judge Bean J
Date of Judgment 1 Jun 2012
Bento- Chief Constable of Bedfordshire Police- CPS- murder- press release- defamation- justification- qualified privilege- informing the public- reply to attack- trial- damages award
In 2007 C had been found guilty of the murder of his then girlfriend, Kamila Garsztka (KG). C maintained his innocence, contending that KG had committed suicide.The prosecution case had hinged on evidence provided by a witness who subsequently committed suicide.
In 2008 the CA (Cr. Div) allowed fresh evidence to be adduced on appeal which contradicted the evidence provided by the prosecution’s key witness. The CPS accepted that the conviction ought to be quashed and the re-trial ordered by the Court of Appeal never took place.
Following the CPS’s decision not to re-try C, D issued a press release essentially criticising the CPS’s decision, stating that the re-trial had been abandoned as a result of “confusion in regard to expert evidence”, adding that “the police investigation found no evidence whatsoever that [KG] killed herself”.
C sued on the publication of D’s press release in defamation, claiming that it meant that he was guilty of murdering KG and that he “wrongly escaped justice as a result of confusion in regard to the expert evidence”. D pleaded justification and qualified privilege.
(1) Was the press release defamatory of C and, if so, what did it mean?
(2) Could D successfully defend the press release with either of the following defences:
(a) Justification, i.e. by establishing essentially that C had killed KG; and/or
(b) Qualified privilege, on the basis either that:
i) The press release was published in pursuance of 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”, and was therefore published on a privileged occasion; or alternatively,
ii) That it was protected by ‘reply to attack’ privilege, because it was distributed in defence of an anticipated attack in the media about D’s handling of the investigation into KG’s death.
(1) The press release was defamatory, and bore the meaning that (a) a jury had already found that C had murdered KG; (b) the evidence as it stood in July 2009 showed that he probably killed her, which was sufficient to justify proceeding with the retrial; and (c) that the CPS decision to offer no evidence was therefore wrong.
(2)(a) Justification- The Judge concluded at that, on the balance of probabilities, KG committed suicide, (as opposed to having been murdered by C). D’s justification defence therefore failed.
(2)(b)(i) Qualified privilege- duty to inform the public. Whilst the Judge accepted that there was a “high public interest in maintaining confidence in the criminal justice system” he did not accept that the “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….is wrong because the individual concerned is or is probably guilty.”
The D could have issued any other statement explaining what happened, but without expressing a view on the CPS’s decision not to continue with the trial to protect its own interests, without defaming C.
(2)(b)(ii) Reply to attack. The Judge did not accept that reply to attack privilege was available in situations where the attack was merely anticipated, as opposed to having actually occured. However, even if that was wrong, he did not accept that D reasonably anticipated a public attack on its conduct, which was a pre-requisite in order to benefit from this defence. The attack on C had been disproportionate in any event; D’s response need only have explained what the police’s actions had been, as opposed to saying that C was probably guilty of murder. Accordingly the qualified privilege defence was rejected.
The Judge made an award of £125,000, taking into account that the justification defence had aggravated the damages to some extent, but accepting there was no evidence of the press release having attracted national coverage.
The case has already achieved notoriety for its plea of justification to an allegation of murder but will chiefly become useful for its discourse on the availability of ‘reply to attack’ qualified privilege in circumstances where an attack is only anticipated, and has not yet actually been made. The Judge made it clear at  to  that, despite Sir Maurice Drake indicating in Bhatt v Chelsea and Westminster NHS Trust that the defence could be deployed to protect a ‘pre-emptive’ defamatory statement, in fact, that decision may be questioned.
Hughmans for C; Berrymans Lace Mawer for D
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