Our criminal justice system is rightly loaded in favour of letting those who are probably guilty walk free to avoid locking up the innocent for crimes they did not commit. Juries are directed to convict a defendant only if they are sure of their guilt. But terrible miscarriages of justice can and do happen.
There are supposed to be safeguards in the system to help expose these. Yet a new independent review of the Criminal Cases Review Commission’s handling of the case of Andrew Malkinson – who was imprisoned for 17 years for a violent rape he did not commit – shows just how threadbare that safety net really is.
Malkinson was convicted of rape in 2004. His conviction was fundamentally unsafe on many counts: Greater Manchester police failed to disclose important evidence that undermined the case against him, including photographic evidence that supported the victim’s memory that she caused a “deep scratch” to her attacker’s cheek (Malkinson had no marks on his face when he was seen by the police the next day) and the fact that a key witness who identified him was a heroin addict with multiple criminal convictions who only came forward the night he was arrested for another crime. Greater Manchester police also destroyed key pieces of clothing from the victim while a preservation order was still in place, which could have jeopardised the DNA testing that later proved Malkinson’s innocence. There were further failings three years after his conviction when DNA evidence from another man was found on the victim’s clothing as part of a forensic review of several cases; both the police and the Crown Prosecution Service were notified but failed to act.
The Criminal Cases Review Commission is the independent body that acts as a gatekeeper in determining whether potentially unsafe convictions should be referred to the court of appeal for review. Malkinson applied to the commission twice in 2009 and 2018 on the basis of this extra evidence to have his case reviewed.
The CCRC has considerable investigatory powers and could and should have uncovered disclosure failures by Greater Manchester police that themselves would have been enough to render his conviction unsafe, and commissioned further DNA testing. It did not. It took the involvement of the charity Appeal with Malkinson’s case over a period of years – commissioning its own DNA testing and uncovering the disclosure failures after a legal battle for the police file – to eventually convince the CCRC to refer the case to the court of appeal in 2023 after a third application, which finally led to his conviction being overturned.
There was no apology from the CCRC after Malkinson’s conviction was overturned. “We recognise Andrew had had a very long journey to clear his name, but sadly the evidence that led to the court overturning his conviction only became available years after his conviction,” said its chair Helen Pitcher, a statement that scandalously sweeps under the carpet the CCRC’s devastating failure to use its powers to bring that evidence to the surface.
Last October, Sarah Munro KC was appointed by the lord chancellor to chair an ongoing public inquiry into the wrongful conviction of Malkinson. The CCRC also last year commissioned its own independent review by Chris Henley KC into its handling of the case; that review was published last week, together with the CCRC’s response.
Its findings are damning. Henley says that Malkinson’s conviction would have been overturned 10 years earlier if the CCRC had properly understood the implications of a similar miscarriage of justice, involving another innocent man, Victor Nealon, convicted of rape in 1997 – a case in which the commission had made the same kind of errors. The CCRC consistently failed to apply the correct test in determining whether Malkinson’s case should be referred to the court of appeal on the basis of the evidence. Henley concludes that this test “even now is not being applied properly, and that the CCRC is taking too cautious an approach. This needs urgently to change.”
He finds that the CCRC failed Malkinson and says it owes him a wholehearted apology. He quotes Pitcher claiming as recently as 2021 that “when we do [make mistakes] we stick our hands up as soon as possible” but says that this simply has not happened. In fact, the CCRC misleadingly implied in its statement the day the court of appeal overturned the conviction that it was its own forensic testing that had been responsible. It should not have taken Henley’s report to force the apology from Pitcher that was so obviously due to Malkinson. In its response to Henley’s review, the CCRC defensively cites academic evidence that found “no evidence that we were missing opportunities to refer cases to appeal”. That might be the case, but Henley’s review is crystal clear that the CCRC has failed in this regard, and that he is concerned that it is continuing to do so.
Shabana Mahmood, the justice secretary, has quite rightly said she believes Pitcher is unfit to serve as chair of the CCRC in light of Henley’s findings, and has begun the process to remove her. If Pitcher felt any contrition about the failings on her watch, she would pre-empt this process by offering her resignation.
We will have to await the findings of the public inquiry to learn just how extensively Malkinson was failed by the various institutions of the criminal justice system, from the police to the prosecution service. But Henley’s review highlights that the CCRC is not fit for its critical purpose of serving as a safeguard against miscarriages of justice. It requires reform and investment under a completely new leadership.
