Andrew Malkinson had only just stepped outside the court of appeal last summer when he received a message of apology from Greater Manchester police. It was the force’s work that ultimately led to his wrongful conviction for rape, leaving him incarcerated for 17 years.
Malkinson was unimpressed by their late contrition, but there was another body that refused to apologise at all that day. Yet their work – or lack of it – prolonged his time behind bars by a decade.
The Criminal Cases Review Commission twice prevented Malkinson’s case being considered again by the court, even though it knew from 2009 that DNA implicated another then unknown man. It also declined to do further forensic testing and never once looked at the original police file.
These facts were known to its chair, Helen Pitcher, when Malkinson was exonerated last summer, but it took her another nine months before an apology came. Conceding that the commission had “failed” him, Pitcher said she had not been able to say sorry before seeing the findings of an independent review of its handling of his case.
Now that review by Chris Henley KC is finally in the public domain – and it makes for uncomfortable reading for the CCRC.
Henley’s report shows in excruciating detail the many mistakes made by those tasked with considering his case over three separate applications. Perhaps the most damning insight is how close they came to rejecting his application in 2022, despite new evidence, had an alternative suspect not been found.
Pitcher is now very unlikely to survive the crisis. The new justice secretary, Shabana Mahmood, said on Thursday Pitcher was “unfit to fulfil her duties as chair” and that she had begun the process to seek her removal.
In the weeks after Malkinson was cleared, when questions were being asked about her leadership, the Guardian revealed that Pitcher was in Montenegro promoting her property business. The Montenegro property directorship is one of at least eight jobs that Pitcher holds in addition to chairing the CCRC, including being a non-executive director of United Biscuits. She also chairs the judicial appointments commission, which many have said could be a conflict of interest, given the CCRC’s role in holding the appeal court to account.
But as a part-time chair, Pitcher is not the only member of the leadership team who will now face scrutiny. Many of those closest to the CCRC’s work believe that Malkinson’s case is a symptom of a body that has lost its way. They hope that this review could pave the way for a change in leadership and purpose – as well as better funding.
The former solicitor general and Conservative peer, Lord Garnier, said: “Clearly, the Malkinson case has woken up a lot of people from outside the criminal justice world to the existence of the CCRC and what it does and what it has all too frequently failed to do.”
Garnier, who co-chaired a Westminster Commission into the CCRC, said he hoped for radical changes to the organisation.
“I think it needs new leadership. I think it needs less timid leadership, I think it needs more full-time staff as opposed to fee-based staff who take on a case or deal with work on a day rate. Before, they had people on salaries with pensions who, I suggest, had a longer corporate memory of what had happened in the past.”
The CCRC was established in 1997 to replace a system where only the home secretary could sign off referrals back to the appeal court, a situation blamed for notorious wrongful convictions such as the Birmingham Six and the Guildford Four, which languished for so long without prospect of justice.
For it to fulfil its role it needs to prove it is investigating and uncovering injustice as well as referring cases back for appeal when evidence is presented to it.
One of the more damaging details is that in all three of Malkinson’s applications, which spanned more than a decade, commissioners failed to request the original police file, resulting in little scrutiny beyond the prosecution version accepted in court.
It was Malkinson’s team at the charity Appeal who uncovered the undisclosed criminal past of key identification witnesses, discovering that one was a long-term heroin addict who came forward to help only when he was arrested for another crime.
David Jessel, who spent 10 years as a commissioner at the CCRC until 2010, was concerned about the repeated lack of scrutiny of the original file. “It’s crazy really, because the court paperwork file is just an explanation of why the person is guilty. You’ve got to dig deeper if there’s a sniff of a miscarriage – otherwise you’ll get nowhere.”
Jessel believes it is one of several signs that the CCRC has lost its way. “I think absent is the critical mass of curiosity, authority, experience and expertise represented in the early days of the CCRC’s full-time commissioners working with and inspiring a staff recruited for their ambition for justice.”
