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A man who was wrongly convicted of rape and jailed for 17 years could have been exonerated almost a decade earlier if not for serious failings by officials, a review has found.
Andrew Malkinson, 57, was jailed for life in 2004 and had twice been refused an appeal after applying for his case to be reviewed by the Criminal Cases Review Commission (CCRC) – the body responsible for investigating alleged miscarriages of justice.
His conviction was quashed in July 2023 after years spent protesting his innocence, and an official review has now laid bare a string of “serious” failings and missed chances to correct the miscarriage of justice from as early as 2009.
As the findings were published on Thursday, Mr Malkinson accused the CCRC of having “obstructed my fight for justice and cost me an extra decade wrongly imprisoned”, as he called for a complete overhaul of the body and repeated demands for its chair Helen Pitcher to be sacked.
And 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”, urging justice secretary Shabana Mahmood to “bring in a fresh leadership team at the CCRC that is serious about rooting out wrongful convictions”.
Minutes later, Ms Mahmood announced it was her “firm view” having read the report that Ms Pitcher is “unfit to fulfil her duties” and had “begun the process to seek her removal from that position”.
Last year, officers arrested a new suspect after the discovery of the new DNA evidence. The 48-year-old man from Exeter has been released under investigation and Greater Manchester Police said a file has been passed to the Crown Prosecution Service for consideration.
With the help of Appeal, Mr Malkinson applied for his case to be reviewed by the CCRC in 2009. But at the conclusion of its review in 2012 the commission refused to order further forensic testing or refer the case for appeal amid concerns over costs. A second application was then rejected in 2020.
Crucial DNA evidence had been available since 2007 – but no match was found on the police database at the time.
Chris Henley KC, who was drafted in by the CCRC to carry out the review, uncovered a series of “serious” failings which prevented Mr Malkinson from being freed earlier, including revealing the body had even considered rejecting requests for a referral to the Court of Appeal for a third time.
Making nine recommendations for improvement in his report, published on Thursday, he said: “The CCRC failed him. It required Appeal to obtain the new DNA evidence that ultimately resulted in further work that led to the referral by the CCRC. It would not have happened otherwise.
“The opportunity to have this case referred in 2009 was missed, and a further opportunity to look again at the DNA evidence when the second application was received in 2018 was not taken.”
Referring to Appeal’s later requests to re-test samples in 2019, he said: “I have seen nothing to persuade me that the CCRC would have independently considered that retesting was justified or had any prospect of producing anything new which might call into question the safety of the conviction.”
Mr Malkinson’s legal team previously discovered striking similarities between his ordeal and the earlier CCRC case of Victor Nealon, whose 1997 conviction was overturned by the Court of Appeal in December 2013 after new DNA evidence was unearthed.
Mr Nealon’s case “undoubtedly bore similarities to Mr Malkinson’s case”, Mr Henley said, adding: “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.”
Mr Malkinson said the finding that in 2022 the CCRC was considering rejecting his case for a third time, “despite the compelling DNA evidence presented by my legal team, shows that the body is biased through and through”, adding: “It needs to be torn down and completely rebuilt.”
Upon receiving the findings in April, Ms Pitcher accepted that it was clear the commission had failed Mr Malkinson, saying: “For this, I am deeply sorry and wish to offer my sincere regret and an unreserved apology on behalf of the commission.”
In response to the report, the CCRC said it accepted the recommendations and work to address them was already underway. A separate inquiry ordered by the previous government into Mr Malkinson’s case is ongoing.
