An innocent man who spent 17 years in prison for a crime he didn’t commit could have been exonerated a decade before he was finally freed, a damning report has found.
Andrew Malkinson, who was wrongly convicted of rape, was twice refused the opportunity to appeal by the Criminal Cases Review Commission (CCRC) – which investigates alleged miscarriages of justice.
A review into his case has laid bare a string of ‘serious’ failings and missed chances to quash his conviction.
It found the CCRC sat on crucial DNA evidence which made clear ‘he might be innocent’ as early as 2007.
The failings show CCRC chair Helen Pitcher is ‘unfit to fulfil her duties’, justice secretary Shabana Mahmood said.
She called the findings ‘sobering’ and added: ‘I have begun the process to seek her removal from that position.’
The review, led by Chris Henly KC, found Mr Malkinson and legal charity Appeal applied for the case to be reviewed in 2009 and in 2020 – but both times their appeals was rejected.
And records suggest the CCRC considered rejecting Mr Malkinson’s case for a third time in 2022 – a year before his conviction was quashed.
‘It concerns me that if the new DNA evidence had not been obtained and only the disclosure failures… had come to light, the CCRC would not have made the referral, Mr Henly said.
‘This suggests the CCRC is taking too cautious an approach. This needs urgently to change and the CCRC must learn from this.
‘It must aspire to capturing more miscarriages of justice. The question should always be “might this be a miscarriage case” rather than an exercise in thinking of reasons why the Court of Appeal might reject the referral.’
His review also found Mr Malkinson’s exoneration was delayed because the CCRC failed to learn lessons from its handling of a similar case.
Victor Nealon’s 1997 attempted rape conviction was overturned by the Court of Appeal in December 2013 after two failed applications when his lawyers uncovered new DNA evidence.
Mr Nealon’s case ‘undoubtedly bore similarities to Mr Malkinson’s case’, Mr 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,’ he added.
Mr Malkinson, 57, who was jailed over a 2003 rape in Greater Manchester, called for the CCRC ‘to be torn down and completely rebuilt’ following the findings.
‘This report lays bare how the CCRC obstructed my fight for justice and cost me an extra decade of being wrongly imprisoned,’ he added.
He said an apology Ms Pitcher made in April, when she received the findings, was a ‘cynical attempt to spin the mishandling of my case’.
‘If she is truly sorry, she’ll step down and let someone serious about fighting miscarriages of justice take charge,’ he added.
James Burley, who led legal charity Appeal’s investigation into Mr Malkinson’s case, said the CCRC was a ‘broken safety net’ as he branded the report ‘utterly damning’.
‘The new Justice Secretary should bring in a fresh leadership team at the CCRC that is serious about rooting out wrongful convictions,’ he added.
Ms Pitcher offered Mr Malkinson an ‘unreserved apology’ in April when she received the findings of the review and said it was ‘clear the commission failed Mr Malkinson’.
‘For this, I am deeply sorry and wish to offer my sincere regret and an unreserved apology on behalf of the commission,’ she said.
‘Nobody can begin to imagine the devastating impact that this wrongful conviction has had on Mr Malkinson’s life, and I am deeply sorry for the additional harm caused by our handling of the case. On behalf of the commission, I offer my deepest regret.’
In response to the report, the CCRC said ‘we will learn from the mistakes that were made’, adding: ‘Mr Henley’s recommendations will be acted upon, and work to address them has already started.’
A separate inquiry ordered by the previous Government into Mr Malkinson’s case is ongoing.
Police arrested a 48-year-old man, of Exeter on suspicion of the 2003 rape in July last year. No charges have yet been brought in the case.
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