Andrew Malkinson spent 17 years in prison for a 2003 stranger rape he did not commit. A report has exposed how multiple failings by the Criminal Cases Review Commission prolonged his time in jail.
How did this start?
There was never any DNA linking Malkinson to a stranger rape of a 33-year-old woman who was left for dead on a motorway embankment in Greater Manchester in July 2003. Police officers had remembered Malkinson after pulling him over on the back of a motorbike weeks earlier and thought he matched her description of the attacker. Malkinson was arrested two weeks later and then picked out of a video lineup.
What is the Chris Henley KC review?
While it was Greater Manchester police who put Malkinson in the frame with no forensic evidence, the Criminal Cases Review Commission had the power to end his nightmare. The CCRC is the only body that can return a case to the court of appeal in England, Wales and Northern Ireland and is tasked with investigating potential miscarriages of justice.
After Malkinson was exonerated, Chris Henley KC was asked to review the CCRC’s work on the case. He has concluded that Malkinson could have been exonerated almost a decade earlier were it not for serious failings in the way the CCRC handled the case.
When did the CCRC first look at Malkinson’s case?
Malkinson was convicted in 2004 and after his first appeal failed he turned to the CCRC in 2009. He applied on the basis of a DNA breakthrough made in 2007 as part of a national forensic review called Operation Cube.
There had previously been no searchable DNA in the case and the prosecution relied on witness testimony and painted Malkinson as “forensically aware”. The 2007 discovery was a searchable profile of male DNA that was not Malkinson’s on a “crime-specific” area of the victim’s vest top, where her nipple had been bitten.
Malkinson applied to the CCRC to do more forensic tests and to refer his case back to the court of appeal.
How was Malkinson’s first application handled?
The work on this application was “very poor”, according to Henley, who said case workers had “no effective supervision or direction” and “plainly did not understand the significance of the new DNA evidence”. It took six months for the case even to be assigned to anyone, and when it was, no police file was requested.
Henley said the strength of the application should have prompted a referral to the court of appeal and more forensic testing. There was a “tone of heavy scepticism” in the first case review manager’s (CRM) notes and the case was allowed to “drift” with no sense of purpose or progress for more than a year before they left and a second manager “reached firm conclusions far too quickly, without considering the material”.
The second CRM said in notes that he did not “have a clue as to what this case is about”, inaccurately summarised its facts and said he would be starting from scratch. Henley noted: “It was as if the previous two years had never happened. Meanwhile, Mr Malkinson remained in prison protesting his innocence.”
While considering the case, the second CRM wrote to a colleague: “I think it’s a non-starter.” According to Henley, the CRM spent two months “skimming the surface of the material and showing himself to be insufficiently curious”.
A final decision to reject Malkinson’s first application in 2012 had to be taken by a commissioner, who approved it only 24 hours after receiving the draft statement of reasons. The commissioner declined to be interviewed and Henley concluded that his work was “inadequate”.
What happened next?
Victor Nealon, a postman who spent 17 years in prison for attempted rape, had his conviction quashed in 2013 after DNA linked the crime to another, unknown man.
Like Malkinson, Nealon was turned down twice by the CCRC. Despite a suggestion that DNA testing should be undertaken in similar cases, when a staff member flagged the similarities between Nealon and Malkinson’s cases in 2014 they were told it was different and no action was taken.
Henley said: “In my view Mr Malkinson’s conviction would have been quashed almost 10 years earlier than it was if the Nealon judgment had been properly understood and followed.”
How did the CCRC handle Malkinson’s second application?
Malkinson applied again in 2018 on the basis of irregularities in the police identification procedures. Henley said this application was dealt with more professionally but noted that the CCRC still failed to look at the original police file or to commission DNA testing. Malkinson’s legal team at the charity Appeal wanted this application paused while they conducted their own forensic work but this was denied and the case was turned down in 2020.
What about the most recent application?
It was Malkinson’s 2021 application that ultimately resulted in a successful referral to the court of appeal, but the case file reveals how close it came to being refused.
Malkinson’s team at Appeal uncovered major disclosure failures after a legal battle with Greater Manchester police for police files that the CCRC could have accessed instantly. Malkinson’s final application also showed that an unknown male’s DNA was in several new locations after samples were retested. The CCRC then commissioned further testing and a match was found.
Henley said he had “real concern” about entries in the case log in 2022 which suggested that if an alternate suspect was not found on the DNA database then the case would be turned down, despite strong evidence.
In January 2022 a note of a meeting between the CRM and the commissioner making the final decision says it was agreed that “it is likely that, short of a match on DNA database of a viable person of interest, this issue could not form the basis of a referral of the case”. A further note in March 2022 said: “We have made the identification of an alternative suspect a requirement for the referring of conviction.”
Has the quality of decision-making improved?
The test for referring cases to the court of appeal should be that there is “a real possibility” that the conviction will be overturned. Some believe this already sets the bar too high but Henley said staff at the CCRC in all three of Malkinson’s applications had “not properly understood” that innocence did not need to be proved by the presence of another suspect.
Henley said the fact that in 2022 it “appeared to be on the verge of repeating the error that no referral [to the appeal court] could be made unless the unknown DNA donor could be identified” suggested that even now the CCRC was still taking “too cautious an approach”.
What does it show about the body’s relationship with the police?
Shortly after the first application was received by the CCRC there is a record of a phone call from a Greater Manchester police detective chief inspector who “by coincidence” was in charge of the original prosecution. The DCI was recorded as having “fairly robust views on the conviction”.
The report also details a reluctance to go back to the original police file, instead accepting the prosecution file presented in court. Henley said: “From what I have seen in this case there seems more of a reluctance to obtain the police file than the files from [the prosecution and other bodies]. The police file will often contain the most important material, particularly if there have been disclosure failings.”
What next?
Henley has recommended a series of measures, some of which have already been enacted. These include a trawl for previously rejected cases where new forensic testing may uncover mistakes, an immediate apology from its chair, and regular training to better understand forensics and the test for referral.
