Why Brian Buckle should get compensation

Dr Huw Evans, academic lawyer, Cardiff Metropolitan University

Brian Buckle from Pembrokeshire was the victim of a miscarriage of justice. Yet the law means that he cannot receive compensation. That is wrong. This article explains why.

In 2017 Buckle was sentenced to 15 years in prison after being found guilty at Swansea Crown Court of 16 child sex offences. After serving five years the Court of Appeal quashed his conviction after new evidence was presented.

Despite that, the Crown Prosecution Service proceeded with a retrial in 2023. Buckle was acquitted of all charges. His subsequent claim for compensation from the UK Government failed because he could not prove beyond reasonable doubt that he was innocent.

The law

The law about compensation for miscarriages of justice is set out in the Criminal Justice Act 1988 (CJA).

The CJA allows compensation to be paid to the victim of a miscarriage of justice (A) where specific criteria are met. In broad terms compensation can be paid in serious cases where a conviction is
quashed because of compelling new evidence, as happened in Buckle’s case.

Specifically, before 2014, for compensation to be paid, the CJA said that A must show that the new evidence ‘shows beyond reasonable doubt that there has been a miscarriage of justice’.

If that was it, Buckle would have met the criteria as, surely, there is no doubt he was the victim of a miscarriage of justice. He spent five years in prison for offences for which he was later acquitted.

However, in 2014 the meaning of ‘miscarriage of justice’ was tightened to be read as meaning ‘[A] did not commit the offence [or offences]’.

What the law now says is that compensation can only be paid if the new evidence shows beyond reasonable doubt that A did not commit the offence(s) for which A was convicted.

Proving beyond reasonable doubt that A was the victim of a miscarriage of justice is wholly different from proving beyond reasonable doubt that A did not commit an offence. It is far more onerous.

Before 2014 the CJA reflected international law obligations under the UN International Covenant on Civil and Political Rights. But that position was compromised by the 2014 change.

The CJA also sets out the grounds on which compensation is calculated including setting a cap on the overall amount of compensation that can be paid. This is £1 million if A has been detained for more than ten years, otherwise it is £500,000.

Why the law is wrong

At the core of the UK criminal justice system is the principle that a person is presumed innocent until proved to be guilty. This is reflected in article 6 of the European Convention on Human Rights (ECHR), which is about the right to a fair hearing.

Key to this principle, the prosecution, as accuser, must prove the case against an accused person. Lawyers call this the burden of proof.

To be successful, the prosecution must prove the case beyond reasonable doubt.

Lawyers call this the standard of proof.

The current law on compensation for miscarriages of justice reverses the presumption, burden and standard. A is presumed guilty until A proves A’s innocence beyond reasonable doubt.

In my view this is unjust and puts the UK in breach of its obligations under the ECHR to ensure a fair hearing.

Sometimes A might be able to prove A’s innocence beyond reasonable doubt, such as with Andrew Malkinson, whose conviction for rape was quashed in 2023 after 20 years in prison.

He was given compensation because there was evidence that the offence was committed by someone else. But often that certainty will not be there.

Where A stands trial for an offence, A can be acquitted on two bases: that A is innocent or that there is enough doubt about A’s guilt to make a conviction unsafe.

In Malkinson’s case, his conviction was quashed because he was innocent.

In Buckle’s case we do not know why he was acquitted at his retrial. We will never know as jury deliberations are confidential. It is an offence to disclose what goes on in the jury room.

Yet despite this, a civil servant has decided that Buckle was acquitted because he couldn’t prove his innocence beyond reasonable doubt. That is wrong.

More fundamentally, it is wrong because the presumption of innocence is not being applied.

Law Commission review

The Law Commission is currently consulting on reforms to the law governing criminal appeals, which includes compensation and support for the wrongly convicted. After the consultation closes, it will carry out a review and make recommendations about how the law might be changed.

This may mean changing the law so that people in Buckle’s position are given compensation. But any change is likely to be years away.

Why was the law changed in 2014?

According to explanatory notes for the law change, the CJA was amended to remove doubt about what ‘miscarriage of justice’ meant after case law created uncertainty. The explanatory notes do not mention the aim of restricting public expenditure. But restricting the definition of ‘miscarriage of justice’, and restricting the circumstances in which compensation is paid, has had that potential effect.

The austerity programme started in 2010 and was ongoing. Chris Grayling was one of its champions and Justice Secretary in 2014. Is it too cynical to suggest that austerity was a contributor to the change?

Victim

Buckle is the victim of a miscarriage of justice. He was convicted of serious offences for which he was later acquitted after spending five years in prison. This will have had a devastating effect on his life and those close to him.

The CJA should be amended so that people in his position are not required to prove their innocence.

As a fundamental legal principle, and in accordance with international law, the presumption of innocence should apply to them. They will then get compensation for the injustices they have suffered.