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Andrew Malkinson stood outside the Royal Courts of Justice in July this year wearing a T shirt that said “innocent and not the only one”. He had finally been exonerated after spending 17 years in prison for a crime he didn’t commit.
Later, the IOPC director of operations, Amanda Rowe, announcing an investigation into Greater Manchester Police who had undertaken the initial investigation, said that Mr Malkinson has suffered “one of the worst miscarriages of justice in British legal history”.
He was arrested two weeks after a woman was brutally attacked and raped in 2003. She suffered multiple scratches and bruising, a fractured cheekbone and a severe bite injury to her left nipple.
There was no DNA evidence linking him to this crime. His conviction was based on witness evidence, including an identity parade in which the victim thought she recognized him.
DNA evidence that could have exonerated him was discovered in 2007, after he had been in prison for three years, but he had to wait until July this year before his conviction was overturned.
What Went Wrong?
How did Andrew end up in prison for a crime he didn’t commit? We may have to wait for the results of several ongoing inquiries into the alleged failings of the police and the Criminal Cases Review Commission (CCRC) before we know the full story, but some information is now in the public domain.
“Grave and Repeated” Disclosure Failings by Greater Manchester Police (GMP)
The appeal court heard that he had not had a fair trial because of the failure of GMP to disclose vital evidence.
The court wasn’t told that two key witnesses were criminals, who didn’t come forward until one of them, Michael Seward was arrested. Malkinson’s lawyers felt that Mr Seward received arguably lenient punishments for the charges he faced and his motivation could be questioned.
The victim said that she remembered causing a deep scratch to the rapists face. Mr Malkinson did not have a scratch on his face. The trial judge advised the jury to consider the possibility that she may have misremembered scratching him. A photograph of her hands showing one nail significantly shorter was not disclosed to the court although it would have corroborated her statement.
Assailant’s Description Didn’t Match Malkinson’s Appearance
The victim described the assailant as having a hairless chest, no tattoos and being three inches shorter than Andrew Malkinson. In fact Andrew had a hairy chest and prominent tattoos on his forearms. He didn’t have the Bolton accent she said her attacker had.
GMP Later Destroyed Vital Forensic Evidence
Despite a preservation order being in place, GMP destroyed the victim’s vest top, bra, knickers and other clothing. Retesting was only possible because small samples were found in a national archive when Andrew made his appeal.
Key DNA Evidence of Innocence Did Not Trigger Further Investigation
DNA from a sample of saliva found on the victim’s vest top was analysed as part of a national review of forensic evidence in 2007. It did not match Andrew Malkinson or the victim’s boyfriend. It was sampled from a ‘crime specific’ area, presumably where she received the bite injury to her nipple.
The CPS, GMP and CCRC were eventually informed of this finding but did not feel that further investigation was needed. See ‘Rape, DNA and injustice: a timeline of the Andrew Malkinson case’ in the Guardian which describes the reasons they gave for their decisions.
The CCRC Refused to Investigate on Two Occasions
Mr Malkinson applied to the Criminal Cases Review Commission in 2009 and again in 2018 but did not find grounds for an appeal. It is alleged that they didn’t commission fresh DNA testing and didn’t look at the full police files.
What Can be Learnt?
All human activity is prone to error. The justice system is no exception. Because of this, robust safeguards are needed to protect the innocent. Our experience is that the CCRC is not the robust safety net that those maintaining that they are innocent need.
Witnesses Can Make Mistakes
Andrew’s case is similar to Anthony Broadwater’s case , in that the victim wrongly picked him out in an identity parade. Much weight was attached to the identification, both at the trial and when the CCRC reviewed his case.
Disclosure Failures Can Land Innocent People in Prison
The charity ‘Appeal’ had to fight a legal battle to obtain information about a the criminal background of one of the witnesses. The notorious case of the innocent Liam Allan is an example of an 11th hour rescue from a prison sentence because his barrister finally managed to wrestle vital evidence from the police. How can it be possible for an English Court in the 21st century to be denied evidence that would enable a fair trial? Clearly this has to change, a fair trial demands that all the evidence is laid before the jury.
Confirmation Bias
Confirmation bias is the tendency of people to ignore information that doesn’t fit in with their beliefs. Those working in the justice system, including the police, courts and CCRC need to be trained to recognize this. Despite the fact that the victim’s description of her assailant did not match that of Malkinson and there was none of his DNA on her, the police apparently believed they had caught the right person.
Saved by DNA
Eventually, the new DNA evidence exonerated Andrew. Although he would be unlikely to admit it, he was luckier than some. Many people are convicted because of the testimony of a complainant without any corroborating evidence. For example, someone can make a wrongful allegation of sexual abuse or assault, even decades after the alleged event, and the victim of the wrongful allegation can be sent to prison for many years. There is no possibility of fresh evidence which could be used to appeal the conviction, such as DNA or new witnesses coming forward, because the only ‘evidence’ of guilt is the testimony of the complainant.
This does not imply that most people who complain of sexual assault are deliberately lying, but as this case shows, some can be mistaken. The greater the delay between the alleged offence and the complainant contacting the police, the greater the possibility for error.
The defendant will have a very hard time proving innocence, because if many years have passed, records that could have confirmed their innocence may have been destroyed and witnesses may have died.
This begs the question, how many innocent people are suffering in prison because they were convicted based on the allegations made by the complainant without any corroboration from other witnesses or forensic evidence?
Prisoners Maintaining Innocence Face Huge Obstacles
A prisoner maintains innocence at great personal cost. Depending on the nature of the offence which they are alleged to have committed, they can be refused ‘enhanced status’ and their early release on probation may be delayed. Andrew spent an extra 10 years in prison because he would not lie and say he had committed a crime which he hadn’t done.
Not only do prisoners maintaining innocence face disbelief and disadvantage in prison, they also face considerable obstacles trying to appeal their conviction. Someone attempting an appeal has to provide fresh evidence if the CCRC is going to progress their case. In the situation where the only ‘evidence’ is the testimony of the complainant and there was never any corroboration, fresh evidence is not forthcoming, so they can not appeal.
The late journalist, Bob Woffindon, who is well known to FACT members published a book in 2017 about miscarriages of justice called The Nicholas Cases: Casualties of Injustice with a chapter on Andrew Malkinson. Later, the charity ‘Appeal‘ took up his case. We have to wonder why it took the dedication of an investigative journalist and a charity to overturn his conviction when his application for help had been twice rejected by the CCRC.
The Inquiries
This was such a gross miscarriage of justice that there have been calls for inquiries. The IOPC is going to investigate Greater Manchester Police, in particular, their destruction of vital forensic evidence, and their failure to disclose the criminal background of key witnesses. In a letter to Mr Malkinson, the IOPC said it believed there was “compelling evidence to suggest that there may have been multiple breaches of the standards of professional behaviour by multiple police officers, along with systemic failures by GMP in respect of this case”.
An independent inquiry will investigate the role of Greater Manchester police , the Crown Prosecution Service and the Criminal Cases Review Commission (CCRC) in Mr Malkinson’s conviction and his attempts to prove his innocence
The Law Commission will also look into the operation of the CCRC and the appeals process as a whole. FACT has much experience of the difficulties faced by members trying to have their convictions overturned, and is compiling a submission to the Law Commission. From our point of view, the Law Commission’s investigation can’t come soon enough.
It is our hope that the suffering endured by Andrew Malkinson will not have been for nothing. This is an opportunity to reform a failing justice system that is, in our view, sending many innocent people to prison and damaging countless lives.