You might think a jury's "not guilty" verdict finally puts a matter to rest but David Bain is discovering that it can be just the beginning

While the David Bain trial was still running, I tried my best to avoid getting captured in its myriad of details. I feared it would be the legal equivalent of Uncle Remus' tar baby, with the slightest contact inexorably trapping me as surely as Brer Rabbit. But the frenzied aftermath to the verdict's announcement has fooled me into taking a swing at it. I just hope I don't get thrown into a Bramble Bush at the end of it all!

Let's get one thing straight, from the very outset. When the jury told the court its decision was "not guilty", this deemed David Bain to be forevermore "innocent" of the crime of murdering his five family members. As far as the criminal law is concerned, he was no more responsible for those deaths than are you, me or anyone else. That's because, in the eyes of the criminal law, everyone is innocent of everything—right up until the contrary is proved beyond a reasonable doubt before a court of law. And right there is where the tricky stuff begins.

Because, in spite of Justice Panckhurst's blunt statement "was it Robin or David?", the "not guilty" verdict says nothing about Robin Bain's role in the events at Every St. All it means is that the jury, after hearing three months of evidence on both sides, concluded that some sort of reasonable doubt still existed as to whether David was responsible for the killings. Maybe the jury were convinced beyond reasonable doubt that Robin was the murderer. Or maybe they just thought that he could have been the murderer, meaning they weren't sure enough as to whether David was responsible to convict him. We'll never know—because the law explicitly prevents us from talking to juries about what lay behind their decision.

That fact doesn't particularly worry or upset me. A criminal trial exists to do one thing and one thing only—determine if sufficient grounds exist for society to label an individual a criminal and impose its sanction on him or her. If the matter is serious enough, we as a society delegate responsibility for the decision to 12 of our "peers". They act as our proxy in deciding that most important of issues, but that's all they have to decide. So if after sitting through three months of evidence the 12 folks on David Bain's jury still had reasonable doubts about his guilt, no arm-chair observer has a right to come in and say "but he obviously should be in jail!"

As for the argument that the jury got it wrong because they didn't hear all the evidence, this also mistakes what a trial is all about. To reiterate, a criminal trial is a process for deciding whether or not we as a society can justifiably sanction an individual for committing a crime, not for establishing "the real truth" of an event. What then counts as valid "evidence" solely is determined by that narrow function. This involves legal tests that encompass theories of truth (i.e. what is fitted to demonstrate something did or did not take place?), predictions about human psychology (i.e. what is the likely impact on a jury of hearing certain things, whether true or not?), and outcome-oriented concerns (most importantly, that the trial process produces as few "false positives"—innocent people found guilty—as is humanly possible).

Seen this way, it is obvious why various matters of alleged "evidence" were kept from the jury. The supposed "confession" heard in the 111 call may not even have been words at all (thus unable to prove anything), while even suggesting it sounded like a confession risked prejudicing the jury against David. The schoolmates' tale that David planned a rape, using his paper round as an alibi, did little to show that's what he then did on the day of the murders; while linking his name with even the suggestion of rape risked a jury convicting him simply of "being a bad guy". These aren't just arbitrary decisions reached by judges who toss coins for an answer. They help safeguard the general reliability of a trial as society's way of punishing only the truly guilty.

Nevertheless, uncertainty over the meaning of the jury's "not guilty" verdict still leaves the "truth" of the Bain murders as a bone to be tussled over in the public arena. And that is where matters get even more tricky for David Bain. From now on any future legal battles (as well as contests in the court of public opinion) will get fought out on the basis of what is regarded as the more likely: was it Robin or David? And that "balance of probabilities" standard may well be a tougher one for David Bain to meet (although I again reiterate that I've tried to avoid tangling myself up in the evidence on this issue, so I don't really claim to know one way or the other if he can do so.)

Thus, if David Bain wants to fully "clear his name", he'll need to have his father's death certificate changed to reflect the "fact" of Robin's suicide. That will require a new coronial inquest, which works on a quite different basis to a criminal trial. If David Bain wants to silence those on the internet who are openly maintaining he did kill his family, he'll have to sue for defamation in civil court. Equally, if David Bain wishes to get compensation for his time in prison, current Cabinet guidelines require that he demonstrate (on the balance of probabilities) that he is innocent of the five deaths in fact, not just that he has been deemed innocent by a "not guilty" verdict. (Actually, under current guidelines he is totally ineligible precisely because he was found not guilty at a retrial—but that little detail may well get swept aside.)

Alternatively, David Bain may well decide he has fought more than enough legal battles. Frankly, if he wants to just get on with things and leave people to believe what they will believe, then more power to him. After all, it's his life to live, not our reality show to script.