A man who spent 17 years in prison for rape was denied a fair trial because of “grave and repeated” disclosure failings by Greater Manchester police, the court of appeal has heard.
There was never any DNA linking Andrew Malkinson to a 2003 stranger rape in Greater Manchester, so his conviction was reliant wholly on witness testimony. Malkinson, 57, always maintained his innocence, more than doubling his time in prison as a result.
Malkinson’s case was heard in the court of appeal on Wednesday after another man’s DNA was found on a fragment of the victim’s vest top.
At Malkinson’s original trial, the court was not told that a key witness was a “long-term heroin addict” with multiple criminal convictions – or that he only came forward as a witness on the night he was arrested for another crime.
The disclosure failure made it possible to present him to the jury as honest and independent – and came despite explicit requests for witnesses’ criminal records.
Michael Seward had claimed to be driving in the middle of the night with a woman who was also a witness in the case and whose criminal convictions were also not disclosed to the court. They claimed to have been witnesses to the moments leading up to the rape.
Seward came forward just hours after police had approached its sources for information to assist the inquiry, to a mobile police station a mile from the road where he was arrested for a driving offence.
Seward, who has since died, was arrested on both the date he came forward as a witness and the date he identified Malkinson in a video lineup six months later. Malkinson’s lawyers say Seward received arguably lenient penalties in relation to the criminal charges he faced, raising questions over his motivation.
At the time he came forward, Seward had just been stopped by police for driving without a licence, insurance or a valid MOT. He also had pending charges for two driving offences and was facing potential drug possession charges.
While he was helping GMP with Malkinson’s case, Seward faced 14 criminal charges, including for drug possession, driving and failure to surrender. These charges – some of which could have resulted in imprisonment and substantial fines – ultimately resulted in no custodial sentence, two cautions and just £145 in fines.
Edward Henry KC, representing Malkinson, said the “original trial resulted in an unsafe conviction because of deplorable disclosure failures which must lie at the door of Greater Manchester police”.
Henry said the “historic injustices” outlined in the case raised “wider implications for the criminal justice system”.
GMP also failed to disclose a photograph that supported the victim’s memory of causing such a “deep scratch” to her attacker’s cheek that she broke a nail. Malkinson was seen by police the next day with no marks on his face and at his trial the judge invited the jury to consider that the victim might have been mistaken in her memory about the scratch.
But it now emerges that the court was not given photographs taken on the night of the attack which showed a nail on her left hand was significantly shorter than the others.
The disclosure failures were only identified 15 years after Malkinson’s conviction, when his case was taken on by the legal charity Appeal.
The DNA breakthrough in the case was also nearly rendered impossible because of the destruction of key exhibits by GMP.
The victim’s vest top, bra, knickers and other clothing were destroyed by GMP, while a preservation order was still in place. Retesting was only possible because small samples from her clothes were found in a national archive by Malkinson’s representatives at appeal.
They sent their findings to the Criminal Cases Review Commission, which conducted its own investigations before referring the case for appeal.
GMP have been approached for comment.
