A man who spent 17 years in jail for a rape he denies has taken a step closer to clearing his name. Today, judges ruled that the case of Andrew Malkinson should be heard in full by the Court of Appeal.
Andrew was 37 when he was found guilty on February 10th 2004 of carrying out a violent sex attack on a mum-of-two by the M61 motorway in Little Hulton, Salford.
As reported in the Manchester Evening News last year, his legal team say they have evidence to prove Andrew did not commit the crime. DNA has linked another unknown male to the attack, they say.
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In January the Criminal Cases Review Commission (CCRC), an independent body that investigates potential miscarriages of justice, has referred the case to the Court of Appeal after it carried out its own forensic inquires and DNA testing revealed a potential alternative suspect.
Today, at a directions hearing at the Court of Appeal in London, Lord Justice Holyroyde, Mrs Justice McGowan and Mr Justice Holgate, directed that a full Appeal hearing should be held in July this year; and that if the victim in the case was to be re-interviewed by police it must be done by June 9th. The July hearing will decide the full grounds for the appeal. It was also directed that a final scientific report on the case must be submitted by May 19th.
Mr Ed Henry KC, for Mr Malkinson, told the court that Andrew had been given a life sentence after being convicted of rape and attempted strangulation, with a minimum tarrif of seven years. His earliest release date was 2010 but he was actually released in late 2020.
Mr Henry said Andrew never admitted his guilt in order to take the "softer option of parole" and added: "He did not foresake his name, because as he understood it the only thing he had left was his family honour. And in particular the memory of his grandfather who had fought with distinction for his country. He was therefore not going to admit something he had not done."
He added: "The CCRC in early January 2023 referred this matter to the court. They had been aware from 2009 that there was crime specific DNA which did not match Mr Malkinson nor the complainant. It was found on a top - her bra - in a crime specific area."
He said at that stage (2009) the CCRC did not consider that it altered the balance of the case. He added that no DNA linking Mr Malkinson to the crime had ever been detected.
The court was told DNA found on the clothing resulted in a suspect known as "Mr B" being arrested. He was arrested in December 2022 but so far no one has been charged.
Mr Henry said Greater Manchester Police were on notice about this matter from 2009 as to other DNA. A forensic review done for the CPS in December that year had identified saliva on the bra. It revealed a mixed DNA profile - the majority that of the victim - but it showed the prescence of at least two persons. He said Mr B was consequently identified as someone who could have been identified by that DNA.
Reacting to today's proceedings, Andrew said: "I am innocent and have been waiting nearly 20 years for justice; over seventeen of these in prison. I would like to see the police and prosecution stop the delays and start treating the appeal with the urgency it deserves. This wrongful conviction has stolen years of my life. I hope the Court of Appeal will finally clear my name."
Emily Bolton, Director of Appeal, the charity which has cmpaigned on Andrew's behalf, and his solicitor, said: "Justice delayed is justice denied, and Andy Malkinson has been waiting nearly twenty years for justice. Given the powerful new evidence supporting Andy's innocence - including DNA results which have led to the arrest of a new suspect - the police and prosecution should be treating this case with the utmost urgency.
"Instead they have moved at a glacial pace. letting down Andy, the victim, and the wider public in this terrible case."
The 33-year-old victim of the rape was attacked as she was walking from her boyfriend's home in Atherton, Wigan, to her own address in Kearsley, Bolton, in the early hours of 19 July, 2003. She was on Cleggs Lane when she was approached from behind by a man who dragged her down an embankment into some bushes near the M61 motorway.
He strangled her until she lost consciousness before raping and seriously assaulting her. There was no DNA or other forensic evidence linking Mr Malkinson to the crime and the prosecution case relied mainly on identification evidence.
Following a trial at Manchester (Crown Square) Crown Court, Mr Malkinson was convicted, by majority verdict, of 10-2. In April 2021, Mr Malkinson’s representatives from APPEAL approached the CCRC with new DNA evidence. In consultation with experts, the CCRC devised a comprehensive forensic strategy to obtain the best possible evidence using modern DNA techniques.
An appeal published in the Manchester Evening News at the time of the attack included plenty of detail. The suspect was described as being in his early to mid 30s, with olive skin and 5ft 8in tall.
He was 'of medium build, with a flat stomach and defined chest muscles. He had a shiny hairless chest and was clean-shaven', police said. He had dark brown or black hair, which was thick and wavy and he spoke with a Bolton accent, the report added. Ten days after the attack, GMP detectives put out an e-fit of the suspect based on the victim's description.
Andrew is 5ft 11in, three inches taller than the description issued by police, does have chest hair, and he does not have a Bolton accent. He is from Grimsby and had only moved to the Manchester area recently after living abroad. APPEAL has also forced GMP to disclose that two witnesses who gave crucial evidence for the prosecution had 16 convictions for 38 offences between them, including for crimes of dishonesty.
