Scores of people who maintain they were wrongly convicted of rape and murder will have fresh DNA testing conducted in their cases after Andrew Malkinson’s exoneration.
The announcement by the miscarriage of justice body for England, Wales and Northern Ireland, the Criminal Cases Review Commission (CCRC), comes ahead of the publication of a major review of its handling of Malkinson’s case.
The review, led by Chris Henley KC, is expected to be published in the coming weeks and is likely to be critical of the body.
The CCRC will go back and test rape and murder cases from before 2016 that it has previously refused to refer to the court of appeal, and where DNA was a factor in identification.
Emily Bolton, Malkinson’s solicitor at the law charity Appeal, said: “This announcement is a stunning admission that after missing DNA testing opportunities in Andrew Malkinson’s case, the CCRC may also have denied justice to hundreds of other innocent people.
“If the CCRC had begun this exercise back when DNA-17 testing became available in 2014, it could have spared Andrew Malkinson extra years wrongly imprisoned.”
Malkinson, now 58, was convicted of the rape of a woman in Salford in July 2003. There was never any DNA linking him to the crime and he was exonerated last year after fresh forensic work linked DNA on a sample of the victim’s clothing to male DNA on the police database.
Malkinson, who spent 17 years in prison for a rape he did not commit, has repeatedly called for the CCRC chair, Helen Pitcher, to be sacked and to return her OBE because of the opportunities the body missed to secure his freedom.
The Guardian revealed last year that police and prosecutors knew in 2007 that forensic scientific testing had found a searchable male DNA profile on the victim’s vest top that did not match Malkinson’s. Yet he spent another 13 years in prison.
The CCRC declined to order further forensic testing after the discovery, or to refer the case for appeal in 2012, with the files showing the CCRC raising concerns about costs.
In 2013, DNA evidence exonerated another man, Victor Nealon, of an attempted rape for which he wrongly spent 17 years in prison. After that case, the CCRC said in an internal report that it should consider reviewing all similar cases, but no such review was undertaken for Malkinson. It took him another decade to clear his name.
Now the body has announced it has re-examined nearly 5,500 cases that it had previously rejected in the light of progression in DNA analysis techniques. It says that last summer it found that in about a quarter of the cases the identity of the offender was challenged, and it will focus on these.
It believes that in several dozen of these cases, DNA samples could be retested using more advanced techniques. It is requesting additional government funding to carry out the retesting as quickly as possible.
However, Malkinson’s legal team believe the exercise needs expanding. Bolton said: “This review is currently too limited in scope. It will not encompass potential miscarriages of justice in attempted murder and sexual assault cases, and it apparently will not be looking at missed opportunities to deploy other powerful DNA techniques such as Y-STR profiling.
“For public confidence in the CCRC to be restored, its current leadership – which has refused to apologise to Andrew Malkinson – must be replaced.”
A CCRC spokesperson said: “The CCRC has been in operation for more than 27 years and scientific advances mean that there may be fresh forensic opportunities in cases that we last reviewed several years ago.
“This trawl is a significant task and is the first undertaken by us on this scale. It could take considerable time, requiring us to have substantial additional resources so we can balance this important work with our existing case reviews.
“Our purpose is to find, investigate and refer potential miscarriages of justice, so it is imperative that we take advantage of opportunities offered by scientific developments to do that.”
