Greater Manchester police failed to disclose key evidence that could have prevented a man spending 17 years in prison for rape when no DNA linked him to the crime, the court of appeal was told today.
Andrew Malkinson was convicted of raping a 33-year-old woman by a motorway in Greater Manchester in 2003. He always insisted he was innocent, spending an extra decade in prison as a result.
His case was referred to the court of appeal in January after another man’s DNA was found on the victim’s clothing. The victim said she recalled causing such a “deep scratch” to her attacker’s cheek that she broke her nail, yet Malkinson was seen by police the next day with no marks on his face.
At a directions hearing in the court of appeal on Wednesday it emerged that photographs of her left hand after the attack showing a broken nail were not disclosed in the original trial. Instead the judge was able to suggest in his summing up that she may have been “mistaken” about the scratch.
The prosecution also failed to tell the court that a couple who claimed to have been able to identify Malkinson walking past their car had 16 convictions for 38 offences between them. The male witness also had a lengthy history of heroin addiction that was not known to the judge or jury.
The prosecution’s case relied on these eyewitnesses and the victim choosing Malkinson in a video lineup. The lack of DNA evidence was explained by saying he was “forensically aware” and had deliberately left no trace.
Wednesday’s hearing also heard of missed opportunities by the authorities to revisit Malkinson’s conviction. Further forensic testing in 2009 revealed traces of mixed DNA in saliva in the victim’s bra that did not match Malkinson’s but the Criminal Cases Review Commission did not think it was enough to refer the case for appeal.
Speaking outside the Royal Courts of Justice in London, Malkinson, 57, said he had “often fantasised” from prison about making it to appeal. He said the conviction means he is still on the sex offender register and “still being punished”.
He said: “It’s been 20 years this August since I was taken and I’m still not free. I can’t go on holiday. I can’t leave this country. It’s taken a big toll on me, a big toll on my mental health, as well as my physical freedom. I just want it to conclude as soon as possible.”
Edward Henry KC, representing Malkinson, said the case raised “concerns about police conduct” because of “an array of procedural breaches and an abdication of responsibility”.
A man was arrested on 13 December last year on suspicion of the rape after new DNA testing of a sample from the victim’s clothing matched his on the police database. He has been released under investigation.
A full hearing on the appeal is now scheduled for July. The Crown Prosecution Service is waiting for a further forensic report before deciding if they will oppose the appeal.
Malkinson’s lawyer, Emily Bolton, director of the charity Appeal, said: “This process is taking way, way too long. This testing that they are doing now could have been commissioned on an urgent basis. This is not a system that is treating wrongful convictions as an emergency.”
As well as wanting his conviction overturned, Malkinson wants to be compensated. “They can’t give me my life back, can they?” he said “So the only thing they can do is give me a secure future for what’s left of my life. I’m 57, I have type 1 diabetes. I’m not well and I might not live another 10 years.”
Greater Manchester police have been approached for comment.
