The case of a man who served 17 years behind bars for “a crime he did not commit” could have “wider implications” for the criminal justice system, his lawyers have told the Court of Appeal.
Andrew Malkinson, 57, was found guilty of raping a woman in Greater Manchester in 2003 and the following year he was jailed for life with a minimum term of seven years.
However, his barrister Edward Henry KC told the court on Wednesday that because he maintained he was innocent and “would not falsely confess to abhorrent crimes which he did not commit”, Mr Malkinson served a further 10 years in jail after his tariff expired.
Mr Malkinson is fighting to clear his name and his case was referred to the court in January by the Criminal Cases Review Commission (CCRC), which investigates potential miscarriages of justice, after recently-obtained DNA evidence linked another potential suspect to the crime.
Mr Henry told the court that samples of DNA which were “rigorously tested” had been preserved over many years but that “most regrettably” items of the victim’s clothing had been “destroyed by Greater Manchester Police”.
At the time of Mr Malkinson’s trial, there was no DNA evidence linking him to the crime and the prosecution case against him was based solely on identification evidence.
I've suffered incalculably for the last 20 years as a result of my wrongful conviction, and I continue to suffer each day— Andrew Malkinson
The Crown Prosecution Service (CPS) has conceded Mr Malkinson’s conviction is unsafe because the new DNA evidence points to another man, who the court ordered can only be identified as Mr B, and says there “must now be a real possibility” he will be charged over the attack.
The CPS and Greater Manchester Police (GMP) confirmed in May they would not contest the appeal and the court is likely to quash his conviction.
However, Mr Malkinson’s legal team also want the court to overturn his conviction on additional grounds, which Mr Henry summarised as “deplorable disclosure failures which mostly lay at the door of the Greater Manchester Police”.
The barrister said these failings, which were only uncovered 15 years after his conviction, meant Mr Malkinson did not receive a fair trial in 2004 and frustrated his previous challenge at the Court of Appeal in 2006.
Mr Henry told the court there was a “realistic possibility at trial that he would not have been convicted” or that his appeal would have been successful in 2006.
He told Lord Justice Holroyde and the other two judges hearing the appeal: “(They were) grave and repeated disclosure failures during those proceedings that undermined any prospect of a fair trial.
“In more than one sense this is an historic case, but also an historic injustice.”
The barrister argued that police photographs, taken within hours of the attack but only disclosed in boxes of case documents years later, supported the victim’s evidence that she scratched her attacker and broke a nail on her left hand.
Had they been disclosed before Mr Malkinson’s trial, he argued, they would have corrected the evidence of a doctor who wrongly said the broken nail was on the victim’s right hand, and the trial judge would therefore not have directed the jury that they could “exclude” the victim’s evidence about that if they were sure she was mistaken.
He said in written arguments the failure to disclose the photographs “deprived” Mr Malkinson of his “strongest defence point – his lack of any facial injury”.
Mr Henry also argued that undisclosed evidence relating to two eyewitnesses to the attack – Michael Seward and Beverley Craig – meant the jury were “misled” into thinking of them as honest and credible, when both had previous convictions for dishonesty offences and one was a long-term heroin user.
None of this was known to Mr Malkinson or his defence team at trial, which Mr Henry argued “violated his right to a fair trial” by depriving him of information which would have helped him to counter the only evidence which supported the victim’s identification of him.
He said in written arguments: “At trial, they were presented as honest witnesses whose evidence could safely be relied on to buttress (the victim’s) identification of the appellant and the defence – deprived of their criminal histories – conceded both were honest.
“It is now clear the jury were given a false impression. Mr Seward and Ms Craig shared a history of untruthful, deceptive and dishonest behaviour, while Mr Seward was additionally a chronic heroin user, who had undisclosed police interactions on both the date he first emerged as a witness and on the date he identified the appellant.”
He added: “Previously undisclosed evidence shows the jury were misled into taking the honesty of these witnesses for granted, and deprived of important information going to their credibility and reliability.”
Mr Henry urged the court to determine the appeal on all of the grounds, saying he wanted to ensure “the widest possible vindication” for Mr Malkinson, but also to “prevent others from suffering the same fate in future”.
The hearing continues and it is not known whether the judges will give a decision on Wednesday.
In a statement after the CPS and GMP announced their decision, Mr Malkinson said: “I’ve suffered incalculably for the last 20 years as a result of my wrongful conviction, and I continue to suffer each day.
“I have always known I am innocent. Finally, the prosecution has acknowledged my conviction should not stand.
“Of course, it is still the Court of Appeal’s decision to grant me justice. I sincerely hope they will give serious consideration to the disclosure failures which denied me a fair trial.
“The police must be made accountable – no-one should have to suffer what I’ve been through.”
At the preliminary hearing in May, Mr Henry told the court the CCRC had been aware since 2009 that there was “crime-specific” DNA which was not a match for either Mr Malkinson or the victim.
However, he said at that time the CCRC “did not consider it tipped the balance towards a referral” to the Court of Appeal.
In October last year, the sample was found to be a partial match for another man, who the court ordered can only be identified as Mr B.
Mr Malkinson previously applied twice for his case to be reviewed by the CCRC but was turned down, eventually being released from prison in December 2020.
After his release, advancements in scientific techniques allowed his legal team, supported by legal charity Appeal, to provide new DNA analysis that cast doubt on his conviction to the CCRC.
The body then commissioned its own testing which found that DNA from the victim’s clothing matched another man on the national police database.
GMP confirmed in January that a man had been arrested and released under investigation in light of the new information, but no decision has been made as to whether he will be charged.
