£750,000 was paid to Shirley Mckie after she was falsely accused of perjury, yet one (only one...why?) of the four fingerprint experts at the centre of the misidentification row has won a wrongful dismissal claim, with a hefty settlement and full reinstatement. Austin asks how can we be certain of anything a court decides, when it is left at the mercy of that most nebulous and immeasurable organs, the jury? 

Legal highlight of my week – the latest chapter in the Fingergate saga. As you’ll know , Fiona McBride, one of the principal players in the original fingerprint identification has won her employment tribunal case that she was fired unfairly from her job as an expert. I haven’t seen the whole decision, but it necessarily brings the acquittal and civil settlement with Shirley McKie back into prominence. And even more to come. The employers are making the usual noises about appealing.

It is unusual to have such a tangle of judgments about one incident - and all so public, but the overlap of litigation makes interesting reading for the lawyer looking on.

Now, I am going to speak generally - I make no comment directly or impliedly about Ms McKie or Ms McBride, but I wonder what the public makes of judicial decisions generally. What is the truth of the case at hand? Are we nearer it due to the legal process(es)? Have we reached the real facts because of - or in spite of - the work of lawyers representing one side or another? Or are we sure he did it because he looks guilty/comes from a sink estate/has made a heartfelt tv plea for the assailant ( that hey presto often turns out to be himself) to come forward. Or , in the words of one relative of mine, there is the magnificent "I would hang them all without a trial". Presumption of innocence just does not compute for some.

The skeptical reactions of people are understandable. The saying no smoke without fire (or in Glaswegian: You widnae be here if ye werenae guilty) lurk shallowly below the surface and can spout up like a bankrupt Iceland geyser. Mr Loophole, the English solicitor Nick Freeman has a dashing reputation for legal success and riches earned from celeb clients, but the lesson that the public take from is work is that a lawyer can get you off on a technicality even if you did it.

The opposite can be equally in the forefront. No-one doubts the innocence of the Birmingham Six and the Guildford Four. So conviction is not necessarily a satisfactory outcome for those watching from the sidelines, nor their only expectation or wish.

Any person being honest would concede that there must be millions of safe convictions and acquittals, but there is no corresponding confidence in the legal system across the board. Anecdotally I get soundings from the lay folk I encounter, and whether it is increasing sophistication or modern era cynicism and the end of deference, the legal system is simply not trusted to a high degree, and the public now have an expectation of regular, if not routine, failure.

Add to that the practice of daily newspapers and news websites to fill a large percentage of their pages with court and legal stories, the drama of real life replayed in the cool of the court, and you get the habitual practice of the public coming to judgment at a distance through the prism of news reportage – sometimes whipped up by the tabloids into ersatz outrage. Another saying - you can't believe all you read in the papers - must be correct, as some stories I have read where I happen to know the people or the facts, runs a high chance of being at best skewed, more likely misleading, and very possible practically wrong - sometime actionably so.

There are two things to say about this situation. One is that in our quest for criminal justice in serious cases we hold to the jury model as being the best we can have for fairness, judgment by our peers, independent assessment of evidence by strangers. ACPOS last week made a (tentative ?) suggestion that juries might be done away with in certain cases to be replaced by panels of judges. The idea was quite rightly opposed by all sorts of professionals and commentators (not least by sheriffs). But the jury system ain’t perfect. I had a trial in a particular court a few years go in which the jurors were clearly, to me at least, taking the whole things as a social encounter - even to the extent of being heard - by me - to be singing Happy Birthday to one of their members in the jury room. I was not spying or doing anything improper ( the thought!), but could not help hearing as the way into the court passed their room and they were belting it out - then clapping and I reckon handing round a cake. And at the end of the case, the verdict they gave could generously be described as perverse. And you don’t need to have seen Twelve Angry Men. We've all heard the tales of people in the room being browbeaten into a verdict, or the exercise of prejudice in place of real judgment, or just Fifteen Bored Men and Women having had enough.

But here's the rub: in spite of the mocking distrust by the public about the courts, lawyers, accused persons ( or criminals as many ordinary folk prematurely think of them), and the absolute pissed-offness most court lawyers feel when asked yet again " How can you defend someone when you know he's guilty?" ( by the way i am increasingly tempted to reply to this with "Because I'm worth it"), there is the simple truth - that the only alternative to a fallible, sometimes shoogly system of courts, prosecutors and defenders is the lynch mob. I heard the striking workers at BP shouting “ If the management won’t do summat about these Eye-talian workers, WE’LL do summat about it!” it may have been rhetoric, but in another context, the baying mob hammering at the police van as an unconvicted peson is hurried into the back door of a court building is an eloquent enough illustration of the precipice we stand near.
Sorry this has all been a bit portentous, but once I get started….

Austin