Greater Manchester police will not oppose the appeal of a man who spent 17 years in prison for rape when no DNA linked him to the crime, the Guardian has learned.
Andrew Malkinson was convicted in 2004 of the rape of a 33-year-old woman who was left for dead on a motorway embankment in Salford. He always insisted he was innocent, extending his prison time by a decade as a result.
Malkinson’s case was referred to the court of appeal in January after another man’s DNA was found on the victim’s clothing. His appeal will be heard in July.
Until this week it was thought that Greater Manchester police (GMP) and the Crown Prosecution Service (CPS) might contest the case, but they said the DNA breakthrough meant they no longer considered Malkinson’s conviction safe.
However, they confirmed they would fight to keep the scope of the appeal narrowly focused on the DNA developments that prompted the original referral to the court. This would mean no scrutiny of alleged disclosure failures that Malkinson’s lawyers argue contributed to his wrongful conviction.
Malkinson, 57, 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.”
A jury found Malkinson guilty by 10-2 on the basis of witness evidence but the court was not told of the extensive criminal records of two witnesses, or that one was a long-term heroin user.
The victim also said she recalled causing a “deep scratch” to her attacker’s face but Malkinson had no marks the next day. Photographs of her hand showing a broken nail after the attack were not disclosed in the original trial. Instead the judge was able to suggest that she may have been “mistaken” about the scratch.
The CPS does not accept that there were disclosure failings and argues these points “do not render the convictions unsafe”.
Malkinson said: “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.”
A man was arrested last December on suspicion of the rape after new DNA testing of a sample from the victim’s top matched his on the police database. He has been released under investigation. The testing used in the latest DNA investigation was not introduced until 2015 and was not available at trial.
Emily Bolton, Malkinson’s solicitor at Appeal, said: “This is a major milestone in Andy’s quest for justice. The CPS – which nearly two decades ago prosecuted Andy – has accepted that his conviction should be overturned.
“Andy’s 17 years of wrongful imprisonment were avoidable. We will be arguing that Andy’s conviction is unsafe not only in view of new DNA evidence, but because there were significant disclosure failures at his trial.”
Bolton said it was important to dissect what went wrong in his case “to protect victims of crime and prevent wrongful convictions in future”.
It is in the interests of the CPS and GMP for any mistakes that may have led to a potential miscarriage of justice not to be investigated further. The court ruled this month that it would decide at the hearing whether it would consider grounds for appeal beyond the DNA developments.
A CPS spokesperson said: “After reviewing new DNA evidence after the CCRC made its referral in 2023, the Crown Prosecution Service has agreed that the conviction of Mr Malkinson is no longer safe. Therefore, the CPS will no longer contest his appeal.”
They added that “a decision to overturn a conviction is a matter for the court of appeal” and that they could not comment further until it concluded because of reporting restrictions.
A spokesperson for GMP confirmed the force had decided with the CPS not to contest the appeal and said it “would be inappropriate to comment in any detail until the conclusion of the court of appeal hearing”.
