David Bain, reasonable doubt and defamation

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David Bain was found not guilty of murder, but given the rather divisive nature of the high profile case, there are still people who believe that he committed the murders of his family in 1994. This raises in my mind an interesting question about what people are allowed to say about their beliefs in public. In particular, it raises the question of what does and does not count as defamation or libel.

If a person were to accuse me of being a murderer and as a result I suffered some sort of loss, I could sue that person or those persons for defamation (or libel if it was published). But what do we say in the aftermath of a somewhat controversial court case when someone says “I still think he did it.” It’s obvious that what this amounts to is the claim that “David Bain is a murderer.” Could this be defamation?

One completely adequate defence to the charge of defamation is the defence of truth. If what you’re saying is true, then it’s just too bad for the person who suffers loss. The facts are what they are. But the court has determined in the case of David Bain that the truth of the murder charge cannot be upheld. So that defence wouldn’t work if you were sued for defamation. [EDIT: See the comments. This is not quite true in a civil case like defamation, as the standard of proof is different from a criminal trial.] However a second and much more widely used defence against a claim of defamation is the defence of a reasonably held belief. Even if you are quite mistaken, you are permitted to express an opinion even if it does cause loss to another person provided the opinion is a reasonably held opinion. That is, as long as you have genuine reasons for holding it (“genuine” here is meant to rule out silly things like racial bigotry, foolishly believing gossip, drug induced mental states and so forth),  you have a defence and you haven’t defamed anyone.

Here’s where things get interesting. Given the court’s not guilty verdict, could you reasonably hold the opinion that David Bain committed the crime of murder (or even a lesser crime like manslaughter)? As always let me be clear – I am not expressing that opinion. The question is clearly not unique to the David Bain trial. The question applies equally to any person found not guilty of murder (e.g. O J Simpson). I don’t know if you can in fact reasonably hold that belief, but I am absolutely certain of this: The fact that a jury found him not guilty does not mean that you can’t reasonably believe that he is guilty. Remember that a “not guilty” verdict means that the prosecution has failed to show beyond reasonable doubt that the person committed the act. In other words, the verdict means that a person who doubts that David Bain committed these murders is not being unreasonable. But this clearly does not mean that a person who believes that he did commit the murders is being unreasonable.

Let’s call the claim that the accused committed the crime C. There is nothing at all strange about the observation that it might be reasonable for someone to believe C and also reasonable for a person to believe ~C (the denial of C). Obviously C and ~C cannot both be true, but I’m not talking about which claim is factually correct.

In fact, to say that it would count as defamation to say that David Bain committed the crime has some scary consequences. It would mean, for example, that if you’re being interviewed in the media and someone says to you “so, do you think the jury got it right?” you are legally obligated not to say no, or you have committed an offence. It literally closes to door to even debating the reliability of juries.

This is not to say, of course, that you’re free to call David Bain a murderer. Not at all! Just as the jury’s verdict does not make it unreasonable to hold the belief that he committed the crime, the fact that the verdict only indicates the presence of reasonable doubt does not mean that your belief in Bain’s guilt is a reasonably held belief. If you’re caught accusing him, be prepared to show that your belief is in fact reasonable.

Glenn Peoples

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{ 4 comments… add one }
  • Oliver Scott June 7, 2009, 3:18 am

    A jury can say that he has not been proven to have done it, but I would say this, last time they let him have a gun, his whole family were shot dead with it. I presume at least that no one is being stupid enough to suggest he be given a new gun licence.

  • Cash June 8, 2009, 10:10 pm

    On tv 1 news on sat 5th Bain said ” I know what happened”. The only way he could “know what happened” was if he witnessed the murders. If he is truly innocent, he does not “know what happened” but can only speculate as his defence did.

  • Matt June 9, 2009, 8:56 am

    One completely adequate defence to the charge of defamation is the defence of truth. If what you’re saying is true, then it’s just too bad for the person who suffers loss. The facts are what they are. But the court has determined in the case of David Bain that the truth of the murder charge cannot be upheld. So that defence wouldn’t work if you were sued for defamation.

    Defamation is a civil suit and hence decided on the balance of probabilites. Bain was tried for a criminal charge where the standard is “beyond reasonable doubt”. Hence a person could go into a defamation case and use the defence of truth. It could well be the case( and I suspect is the case)that Bain’s guilt could be esthablished on the balance of probabilities, even if it can’t be proven beyond reasonable doubt.

  • Glenn June 9, 2009, 2:54 pm

    Good point Matt. I was trying to lean away from making accusations about David, but I may have leaned too far!

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