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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Bento v The Chief Constable of Bedfordshire Police  EWHC 1525 (QB) (01 June 2012)
Cite as:  EWHC 1525 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Amilton Nicolas Bento
|- and -
|The Chief Constable of Bedfordshire Police
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
Crown Copyright ©
Mr Justice Bean :
"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."
"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."
"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."
Justification: the standard of proof
"… 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.
"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."
The evidence before me on the justification issue
Events prior to 12-13 December 2005
"I was aware that Kamila had lots of problems and tried to support her the best I could. She said she listened to others too much and took their advice. She even asked me, in my opinion as someone interested in psychology, if she was depressed. I considered this strange, as I always considered her to be a strong person… She was asking for advice on her relationship with Nico, about whether to continue with him or end it, but she was almost asking herself that question with what she was saying. … She also talked about leaving Bedford and going to London, leaving her problems behind and starting afresh. I just assumed she would stay with her cousin down there. Kamila also talked about the subject of suicide, but I'm not sure if she was being serious or not, this was talked about many months ago, even before she went back to Poland in August 2005."
12th December 2005
"I can't believe in your words. I wish hate you maybe you are right it's time for I do my live so please tell me if it is that what you really want."
Like many text messages this is not entirely grammatical (and it should be borne in mind in any event that English is the Claimant's second language). Mr Bento's evidence is that he was trying to say "I wish I could hate you" and "maybe you are right that it is time for me to leave". I accept that this is the most likely interpretation of the message. Kamila's reply was short and to the point: "You are free."
13th December 2005
"You got there about 8.25, about half past eight. She was waiting…..I suggest that you and Kamila walked out of the car park past the visitor centre, then turned left and went along to where the first three large trees are. You stopped by one of those trees, you had an argument, you were still keen that she should take you back, she refused, you perhaps gave a tug on her scarf, something like that. She fell down, it may have surprised you, and you found that she was dead. You then removed her trainers, her coat and her scarf and dropped them on the shore, and then pushed her body into the shallow water. Then you walked to the car park and drove [off]."
The Claimant's movements
"Moving on now to Tuesday 13 December 2005, I cannot be exactly sure of the time Nico got to my flat that night but I'd say it was between 8.30 and 9.30 pm. I know that when Nico finished work, he went to pick up his car from the mechanic called Everton Grant. Nico knows Everton through me….Nico went to his flat at 31B Rutland Road before coming to my house. When he got to my house, Nico told me that he [had] found Kamila's phone and credit card just lying on the table of his flat."
Subsequent events in December 2005
The discovery of the body
"GM: What brings you here?
NB: What do you think brings me here?
GM: Yes, but why this spot?
NB: It was where she was found.
GM: She was found by the boat house, you know that.
NB: Yes, but it was the lake."
Evidence on the suicide theory
The CCTV evidence about the handbag
"No doubt the CCTV evidence is of importance but, as I said a moment ago, it is only on one hypothesis that it can be regarded as decisive. If the court concludes that Mr Fredericks' categorical assertion is right and that the images do not and cannot show that she was carrying a bag (indeed, they demonstrate according to him conclusively that she was not carrying a bag), …I don't have a case. If she is definitely not carrying a bag the rest must be all coincidence. If she is not carrying her bag on the way to the Embankment, it got there [ie to the Rutland Road flat] because she had left it there. That is why it is there. If she left it there, it is impossible to say that Mr Bento took it back from the lake and put it there. Therefore, as I say, that is the end of the case. It must be. The bag did not take itself to the flat: she must have left it there.
But I hesitate, having just said that. I would have to start hypothesising in a big way if I can explain the presence of the bag in his flat and combine that with a theory that he met her at the lake and killed her there. It would be very difficult to do that, logically. May I have permission overnight to think about it with the help of my juniors and see if there is an alternative explanation, but for the moment -- and if there is I will mention it both to your Lordship and to my learned friend first thing in the morning -- I have to say that if she is definitely not carrying the bag, positively not carrying the bag, then my case becomes difficult if not impossible. Yes, that is what we have always felt."
"It is a big ask, we would suggest, on the back of these pictures, to find that she is definitely not carrying a bag. If she is probably carrying a bag, as Mr Burns thinks, or the images suggest that she could be carrying her bag, then different considerations will apply. If the court thinks she is probably carrying her bag then that more or less concludes the case in our favour. If the court thought, however, that it was unsure – and this is a perfectly permissible, sensible and obvious possibility -- whether she was carrying a bag or not, not sure, because the images are so unclear, one way or the other, whether she is carrying a bag, then that could have the same result but only by reason of the context for that finding. The context being all the other evidence, of which the principal features are – though they are only part of a much broader and more detailed picture which includes motive, timings and the improbability of suicide -- Mr Bento's inconsistent accounts of when he so-called found the bag and his inability to give any credible explanation for that; what he said when he arrived at Mr Fortes' place on the evening of 13 December; his failure to make any credible attempt to find her that night; his immediate and exclusive choice of Priory Lake as the place to go on the evening of 24 January; the placing of the flowers on the 3 February at the exact spot where her clothes were found and again his inability to give any credible explanation for that; conclusively -- this is on the basis that the images could suggest that she is carrying a bag -- against that background the fact that the bag was found in due course, or found its way back to his flat. By that means it is possible to resolve any uncertainty as to what the CCTV images actually show. As I have said, if there is no uncertainty, one way or the other, then the circumstantial evidence retreats into the background. I would observe, however, speaking for myself, that certainty, certainly by reference to Mr Fredericks' evidence, is impossible in relation to those images. And for reasons I have given there is a reasonable chance, a reasonable case, let me say it like that, that those images do show her carrying the bag."
Summary of the parties' principal arguments on the facts
Homicide Mr Bento asks Kamila to meet him after work on a dark December night by Priory Lake, the rendezvous being made in a 13-second phone call at 5.16 pm (or conceivably made in the morning and confirmed at 5.16 pm). She leaves the Rutland Road flat with no handbag and arrives at Priory Lake at 8.10-8.15 pm. The Claimant arrives at 8.25-8.30 pm. They walk to the area of the three trees. Mr Bento tugs at Kamila's scarf or in some other way causes her to suffer vagal inhibition. She falls down dead. He removes her coat, scarf and trainers and places them on the ground; then picks up the body and throws it into the water. He makes good his escape before Ms Morse and Mr Burroughs come on their evening stroll.
Duty to publish and the interest or right to receive information
i) It is recognised that there are occasions where the public interest in ensuring freedom of communication includes the publication of false and defamatory statements where that interest outweighs the competing public interest in protecting the reputation of the individual.
ii) One such occasion is where the person who makes the communication has a legal, social or moral duty to make it to the person to whom it is made and the recipient has a corresponding right or interest to receive it.
iii) The categories of occasion that attract qualified privilege are not closed. As Lord Nicholls said in Reynolds v Times Newspapers Ltd  2 AC 127 at 194:"Over the years the courts have held that many common form situations are privileged. Classic instances are employment references, and complaints made or information given to the police or appropriate authorities regarding suspected crimes. The courts have always emphasised that the categories established by the authorities are not exhaustive. The list is not closed. The established categories are no more than applications, in particular circumstances, of the underlying principle of public policy. The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson's dictum in Adam v Ward  AC 309 at 334 is much quoted:"A privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice."
iv) The circumstances which may give rise to qualified privilege are not only very varied but may change as the requirements of public policy change. As Lord Nicholls explained it in Reynolds: "Circumstances must be viewed with today's eyes. The circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions."
v) A publisher can be under a duty to publish to the world at large, or at least a section of it, without recourse to Reynolds privilege, where the circumstances giving rise to the publication are such that it is in the public interest that it should be made, because the public has a legitimate right or interest to receive the information conveyed.
vi) Where the publisher is a public authority, in order to be protected by qualified privilege the publication must be consistent with its public law duties and in accordance with its obligations under the Human Rights Act (Wood v Chief Constable of the West Midlands Police  EMLR 20; Clift v Slough Borough Council  1 WLR 1774).
vii) If the publication is apt to damage a person's reputation, his Article 8(1) right to respect for private life applies and the public authority must not interfere with that right unless the publication can be justified under Article 8(2) (Clift at ). In order to be justified the publication must be necessary for a legitimate aim and proportionate to that aim. Ultimately the Court must strike a fair balance between the rights of the individual and the interests of the community.
viii) However, the inclusion of the rights and the adoption of the language of the European Convention must not be regarded as having superseded or displaced the common law defence of qualified privilege, or the public policy behind it merely because the defendant is a public authority. This was made clear by Ward LJ in Clift at : "The defence is the common law defence of qualified privilege. To support the defence the defendant must first establish that it is under a duty to communicate the information to those who have a corresponding interest or duty to receive it. The issue is whether or not the Council are under such a duty."
ix) The "new" approach clarified in Clift is not settled. Tugendhat J said in Lewis v Commissioner of Police of the Metropolis  EWHC 781 (QB) at  that: "The law in relation to qualified privilege as it applies to publications by a public authority is difficult and developing [and] is fact sensitive."
x) A public authority does not have an Article 10(1) right to freedom of expression. However, Article 10(1) not only protects the right to impart information but also the right to receive information. This includes the right of the public (and media on its behalf) to receive information. That the right now appears to be of wider scope than originally thought, in particular where the media are involved and genuine public interest is raised, was acknowledged by the Court of Appeal in R ...Guardian News and Media Ltd) v City of Westminster Magistrates Court and the Government of the United States of America  EWCA Civ 420 at  and "A" by his litigation friend, the Official Solicitor v Independent News & Media Ltd and ors  1 WLR 2262 at  to . Whilst the facts of those cases are different from this case (the media applied successfully under the open justice principle for access to information held as part of court proceedings), the wider scope of Article 10(1) is plainly of general application where it is the public which has a legitimate interest in receiving the information in question and much of the information in question is already in the public domain.
xi) The information relates to the administration of justice; namely the conduct of a criminal investigation, and there are correspondingly "high public interest reasons" for the public having access to it;
xii) It is clearly in the public interest for the police to communicate to the public about the status of an investigation into a suspected serious crime, save when such a communication is calculated to cause a substantial risk of serious prejudice to current proceedings (which is not asserted in this case). It is a feature of modern policing that the public expect to be kept informed in this way, and the police also benefit from this two-way relationship by the public providing information to them, but also by the resulting maintenance of public confidence in the police properly investigating crime. It was specifically in the public interest for the police to communicate through the media with the public, including the Polish community in and around Bedford, at all stages of the investigation into Kamila's death in order, first, to meet their natural and proper concern to have the fullest information possible and, hence, to retain their confidence that the case was being taken seriously by the police; and, second, to encourage the flow of information that might assist the investigation. The police are and were at the material time in any event under a duty imposed by Government requirements for transparency and openness in police investigatory work to provide regular briefings to the media to keep the public informed, the overall aim of which is to engender and maintain public confidence in the police.
xiii) The public interest reasons for keeping the local population informed about the ongoing investigation into Kamila's death applied just as much after the CPS discontinued the prosecution of the Claimant in July 2009 as before he was charged in November 2006. This is because the CPS' decision left the Defendant with an unresolved case given that, in his view and based on the evidence in July 2009, there was no credible evidence of the involvement of anyone else or of suicide and the Claimant remained the prime suspect.
xiv) This left the Defendant with a duty to explain to the public, as far as possible (bearing in mind he did not wish to state that the Claimant was guilty of murder), the nature of the decision by the CPS and why, despite it, the Claimant remained the prime suspect. It was simply not an option for the police to say "We have no comment to make" when asked the sort of questions by the media which were anticipated:(1) Now that the prosecution of Mr Bento has been dropped, are the police looking for any other suspect in connection with Kamila's death? The honest answer was no and the public were entitled to be told this. Otherwise they might be misled into thinking either (a) the killer was at large and/or (b) police incompetence meant the killer (whoever it was) had escaped justice. Given the Defendant's reasonable view that the evidence of suicide was not credible, neither would have been true.(2) What will happen to the case now? The true answer was that the investigation would be kept under review in order to obtain new evidence against the Claimant or, if new evidence were to lead the inquiry in that direction, against another person.
xv) Moreover, because of the state of the evidence, in the Defendant's view the decision to discontinue was wrong because there was sufficient evidence to justify proceeding with the Claimant's retrial in the reasonable expectation that he would be convicted of killing her. The Defendant had a duty to inform the public of his position in this regard so that they would not be misled in the way described above.
xvi) It was for these reasons that Assistant Chief Constable Richer drafted the press release as he did and caused it to be issued in response to requests from the media for answers.
xvii) If it is accepted that (a) the press release bore the meanings pleaded in [paragraph 7 above] or something similar and (b) the Defendant was under the duty described above to be honest and transparent with the public about the status of the investigation into Kamila's death, and to reassure them that the inquiry was not closed and that the Defendant had conducted a proper investigation, then it is submitted that the duty outweighed the Claimant's Article 8 right to reputation. The provision of information that the police were not looking for anyone else was, to adopt the language of the European Convention, rationally connected to the legitimate aim of keeping the public informed on a matter of high public interest and importance; i.e. the status of and consequences for the inquiry into Kamila's death of the CPS's decision to discontinue. It was necessary for and proportionate to that aim. Without that information there would have been, it is submitted, a real risk that public confidence in the Defendant would be harmed by the inference that they had botched the investigation and/or there was no evidence against the Claimant, and that a third party (who was at large) must have killed her. Set against this, the announcement that the Claimant remained the prime suspect was not in any event precluded by his acquittal. It is accepted that if the press release had explicitly stated that the Claimant was nevertheless guilty of murder then that would not have been proportionate or necessary. But it was not, in the circumstances, an unjustified interference with his Article 8 right to state that the evidence still made him the prime suspect. [emphasis added]
"It seems to me that the matter can be put on both bases, that is to say the general duty/interest test and the 'reply to an attack' test. I prefer to place the matter on the more general footing by saying that this was a matter concerning public funding and decisions made in relation to it which were likely to have a considerable impact on the arts in South Wales. It seems to me to be clear that someone in [the second defendant's] position had a duty to explain, as far as she could, the nature of the decision and, if pressed upon it, the reasons for the decision. That is particularly so in a case where the matter had been placed in the public domain very recently and had thereby become a matter of legitimate interest."
Reply to anticipated attack
(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.