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12th
May 2005, The Scotsman
YOU can’t choose your relatives but you certainly can
sue them. Sean Flynn who walked free from court after the jury
returned a not proven verdict over the alleged murder of his
mother is being sued by his aunt over her son’s death.
Flynn is no stranger to the courts. In 2003 he was detained
for three years after the death of two friends in a car crash
in which Flynn was driving. His aunt’s son - his cousin
- was one of the victims.
There is nothing particularly unusual about actions like that.
Normally the insurers of the vehicle, if there were any, would
become party to the action. Given that Flynn was found guilty
of the crime, it seems likely that it is only the level of the
£150,000 claim that would be contested and that proceedings
have been raised as a result of a breakdown in negotiations.
Now what would be a story would be if a member of the family
sued Flynn over the death of his mother, Louise. While that
might have been an option if Flynn had been found guilty of
murdering his mother, he wasn’t. He got a not proven.
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There
is precedent for taking such a stance. Joe and Kate Duffy raised
civil proceedings against Francis Auld over the killing of their
daughter, Amanda. Auld had been tried for her murder but the
verdict was not proven. They sued for £50,000 and the
proceedings were not defended. Whether they ever saw a penny
of that money is unknown but at least the Duffys will have seen
the civil court judgement as an attribution of guilt.
Newspapers will sometimes take a risk and run a story by calculating
that someone would be unlikely to sue. It tends to happen when
the media believes that a particular court decision is perverse.
The not proven verdict can be a case in point. They run the
risk of being sued for defamation in the civil courts.
The burden of proof is different in civil cases, namely on the
balance of probabilities, unlike in a criminal court where the
test is beyond reasonable doubt.
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Because
the test is lower many editors think that they will be able
to establish guilt on the lesser test of balance of probabilities.
But it doesn’t work that way.
While there may be only two standards of proof in Scotland,
the law in these situations says that the more serious the allegation
the higher the degree of probability that is required.
To run a story on the basis of the guilt of an individual who
gets a not proven is a highly risky strategy since they have
already been cleared by a jury of their peers on virtually the
same test. One thing that would play in the paper’s favour
is the fact that, unlike in a criminal trial, there would be
no scope for the accused to refuse to give evidence. That may
be deterrent enough.
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