Two former solicitors general have backed growing calls for a public inquiry into the wrongful conviction of Andrew Malkinson after the Guardian revealed that the police had key DNA evidence 16 years before he was cleared of rape.
Lord Garnier KC, who was David Cameron’s first solicitor general, described the miscarriage of justice in Malkinson’s case as “jaw-dropping” and called for a public inquiry to establish what went wrong.
One of his successors, the former solicitor general and former justice secretary Robert Buckland, backed the call, saying all agencies involved “have some explaining to do”.
The Guardian revealed that police and the Crown Prosecution Service knew there was another man’s DNA on the victim’s clothes in 2007 – three years after Malkinson was wrongly convicted of rape. Despite this, the Criminal Cases Review Commission (CCRC) declined to order further forensic testing, or refer the case for appeal in 2012, with the files showing the CCRC raised concerns about costs.
Speaking to BBC Radio 4’s Today programme, Garnier said: “I think the more one learns about this case … the more one is shocked about how Mr Malkinson was let down by the justice system.
“It seems to me that what we need now is complete and utter disclosure, public disclosure, of every document that relates to this case, save those which if disclosed would impede the prosecution of a new suspect, and there should be a public inquiry which should reach conclusions about what went wrong, who knew what and when, within a six-month period.”
Responding to the claims that the CCRC appeared uninterested in new evidence, Garnier said: “The word bystander or spectator was going through my mind. What’s the point of the CCRC if, presented with questions which need answering and which they have the constitutional duty to investigate, they do nothing?
“It’s particularly distressing to hear that on grounds of cost they decided that this was not worth pursuing. Well, here we are now in 2023 … well over a decade since they were first involved in this matter and the costs now are enormous. Not only have we had the cost to Mr Malkinson in every sense of the word but we are going to see him paid, justly, huge amounts of compensation.”
He added: “When particularly terrible cases like the Andy Malkinson case come out it does rather undermine public confidence in the CCRC and I just think the whole thing needs a thorough shake-up and I do hope that the chairman of the CCRC has got an answer for it.”
His call was backed by Buckland, who told BBC Radio 4’s World at One: “All agencies involved in this have some explaining to do, so we understand precisely what happened. Until we have that proper inquiry, I don’t think we’ll get to the bottom of what on earth went wrong in this case.”
Labour’s deputy leader, Angela Rayner, said Malkinson’s treatment had been “absolutely appalling”, and added: “We need to get to the facts of what’s happened.”
James Burley, the investigator on Malkinson’s case at the charity Appeal, said the CCRC’s cursory look at whether to investigate the case for a potential miscarriage of justice had been “deeply flawed and a complete mess”.
He said: “The CCRC’s internal comments show that in deciding not to commission any DNA testing, cost was at the forefront of their considerations. That decision may have saved the CCRC some money, but it came at a brutal cost for both Andy and the victim.
“The CCRC has been giving the false impression that a DNA breakthrough could not have been achieved by them sooner. These records show that is nonsense, and I don’t think they would have commissioned any DNA inquiries on this case at all if Appeal hadn’t obtained new DNA testing results ourselves first.”
Malkinson said: “If the CCRC had investigated properly, it would have spared me years in prison for a crime I did not commit. I feel an apology is the least I am owed, but it seems like the very body set up to address the system’s fallibility is labouring under the delusion that it is itself infallible. How many more people has it failed?”
• This article was amended on 17 August 2023 because in the role of solicitor general, Robert Buckland was one of Edward Garnier’s successors, not predecessors as an earlier version said.
