Andrew Malkinson: Court quashes wrongful conviction of man who spent over 17 years in prison
PRESS RELEASE - APPEAL - 26 July 2023
APPEAL client Andrew Malkinson, who spent over 17 years in prison for a crime he did not commit, has won his two-decade long fight to clear his name.
Court of Appeal judges today quashed Mr Malkinson’s 2004 rape conviction, accepting new DNA evidence inculpating another man rendered it unsafe.
The Court is yet to decide whether they will also allow the appeal based on police disclosure failures which Mr Malkinson’s lawyers say could have prevented his wrongful conviction.
Mr Malkinson was convicted by a 10-2 majority jury verdict of the attack and rape of a woman in Greater Manchester in July 2003.
The prosecution’s case at trial relied entirely on identification evidence and was unsupported by any forensic or CCTV evidence.
Years later, Mr Malkinson’s legal team at the charity APPEAL discovered that Greater Manchester Police (GMP) had withheld material undermining the identification evidence.
What evidence did the prosecution fail to disclose?
Unbeknownst to Mr Malkinson’s trial defence team, GMP had failed to disclose:
· The criminal convictions for dishonesty offences of two key prosecution eyewitnesses.
· One of these prosecution eyewitnesses was a long-term heroin user, and had been arrested by GMP both on the date he came forward as a witness and on the date he identified Mr Malkinson.
· Photographic evidence supporting the victim's account of having caused a "deep scratch" on her attacker's face (a key defence point because, seen by officers the day after the attack, Mr Malkinson had no trace of any such injury).
APPEAL only uncovered these disclosure failures by twice taking GMP to court.
Although eligible for release after 7 years, Mr Malkinson's protestations of innocence led to him spending an extra decade behind bars.
Why has it taken so long for Mr Malkinson to achieve justice?
Earlier opportunities to overturn Mr Malkinson's conviction were missed by both appeal judges and the public miscarriage of justice watchdog:
· In 2006, the Court of Appeal rejected concerns about the identification evidence and upheld Mr Malkinson's conviction as safe.
· In 2012, the Criminal Cases Review Commission (CCRC) declined to grant Mr Malkinson a new appeal hearing. Despite its statutory investigative powers, the CCRC refused to commission any new DNA testing and failed to identify the disclosure failures.
· In 2020, the CCRC again refused to refer Mr Malkinson's case to the Court of Appeal, despite being presented with evidence showing the police committed several procedural breaches in relation to the identification parades.
In 2022/23, the CCRC granted new appeals in less than 2% of cases considered, raising concerns that the body is failing to identify wrongful convictions.
Today's Court decision comes as the criminal appeals system faces scrutiny from the Law Commission in their ongoing review.
The DNA evidence
The CCRC finally referred Mr Malkinson's case in January 2023 after APPEAL commissioned new forensic testing showing that unknown male DNA was present in several samples taken from the victim and her clothing.
This prompted the CCRC to arrange a search of the National DNA Database, which identified the new suspect.
The DNA breakthrough was nearly rendered impossible because GMP had unlawfully destroyed key exhibits, including clothing worn by the victim during the attack. Fortunately, new testing was possible because samples had been retained separately by the Forensic Archive Limited.
In its decision granting Mr Malkinson a new appeal, the CCRC was forced to accept that the undisclosed evidence it had failed to uncover was "supportive" of its referral.
Following the CCRC’s decision, the Crown Prosecution Service (CPS) accepted Mr Malkinson's conviction should be overturned and said there was now a "real possibility" that the alternative suspect would be charged.
However, the CPS sought to limit the scope of the appeal by inviting the Court not to scrutinise the police’s disclosure failures.
Responding to today's decision, Mr Malkinson said:
“I have been fighting for this moment for the last 20 years. Now finally here, I am relieved, exhausted and deeply angry.
Relieved to finally have a public exoneration and have my name cleared. Exhausted after two decades of battling a system that did not want to listen or admit its mistakes. And angry. Angry that I was arrested in the first place despite nothing linking me to the crime. Angry that I was repeatedly denied the opportunity to access the evidence that helped my case – both at trial and during my appeal. Angry that evidence containing vital DNA was unlawfully destroyed by Greater Manchester Police. Angry that, despite several opportunities, the CCRC did not uncover the evidence that has led to my exoneration sooner.
“This whole episode has been like a nightmare – one that has been sustained by a system that we should be able to trust – but which is more concerned with covering its own back than in anything resembling fairness or integrity”.
Emily Bolton, Mr Malkinson's solicitor at APPEAL, said:
“This wrongful conviction was avoidable. Greater Manchester Police unlawfully withheld and destroyed crucial evidence. They relied on two dishonest witnesses to convict an innocent man, allowing the real culprit to go free.
“Worse, the justice system’s supposed safety nets - the Court of Appeal and CCRC - missed three previous opportunities to put this clear injustice right. Reforms are needed to make them accountable.
“Our small charity was only able to achieve justice for Andy because of our generous supporters. We thank in particular Edward Henry KC and Max Hardy, as well as pro bono lawyers from Ropes & Gray, Latham & Watkins, Mishcon de Reya, and Morrison Foerster.”
Notes to editors:
1. APPEAL is a charity and law practice that fights miscarriages of justice and demands reform. www.appeal.org.uk
2. Please be aware that this case is subject to reporting restrictions under the Sexual Offences (Amendment) Act 1992 and the Contempt of Court Act 1981.
3. The Criminal Cases Review Commission (CCRC) is a statutory body responsible for reviewing suspected miscarriages of justice. It can refer convictions to the Court of Appeal where it considers there is a “real possibility” it will be overturned.
4. Details of the Law Commission’s review of the law governing appeals in criminal appeals cases can be found here: https://www.lawcom.gov.uk/project/criminal-appeals/