A man who spent 17 years in jail for a rape he denies has vowed to prove his innocence as police confirmed they have arrested an alternative suspect. Andrew Malkinson was 37 when he was found guilty of carrying out a violent sex attack on a mum-of-two by the M61 motorway in Little Hulton, Salford.
But now 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.
Meanwhile Greater Manchester Police confirmed today that a 48-year-old man from Exeter has been arrested on suspicion of the rape.
Andrew was sentenced to life imprisonment after being convicted of rape in 2004. After spending 17 years in custody, he was released from prison in December 2020, on licence.
He could have walked free from prison after just six-and-a-half years if he had admitted the offence - but refused to do so. He was eventually freed by the parole board aged 55 and has been campaigning to clear his name with the help of law charity APPEAL.
Today Andrew said: “I am innocent. Finally, I have the chance to prove it thanks to the perseverance of my legal team at APPEAL. I only have one life and so far 20 years of it has been stolen from me. Yesterday I turned 57 years old. How much longer will it take?"
The CCRC decision comes after Mr Malkinson’s representatives at APPEAL commissioned new DNA testing which revealed the presence of unknown male DNA in samples taken from the victim and her clothing.
The CCRC has decided there is a real possibility that the Court of Appeal will overturn the conviction of Mr Malkinson, who spent a decade longer in prison than he might have done had he admitted guilt. He could have been released after six years 125 days had he admitted the rape but he refused to do so. He was finally released on licence in December 2020.
APPEAL presented these DNA results to the CCRC, who have been able to identify an alternative suspect via a search on the National DNA Database. Greater Manchester Police are now actively investigating this suspect.
Greater Manchester Police said the force will continue to assist the CCRC review of the case. A spokesperson added: “Following the discovery of new DNA evidence a full forensic review is now taking place and on 13 December 2022 a 48-year-old man from Exeter was arrested on suspicion of a rape which took place in July 2003. He has been released under investigation.”
In a statement APPEAL said: "Concerningly, this new DNA breakthrough was only possible because samples had been retained in a forensic archive. Crucial exhibits were lost or destroyed by GMP, despite the force having a strict legal duty to retain them, meaning they were not available to be tested."
APPEAL also uncovered that key evidence had not been disclosed to Mr Malkinson’s defence at trial and the CCRC has decided that this is also “supportive” of referral.
In 2004, Mr Malkinson was convicted by a 10-2 majority jury verdict of the July 2003 rape of a 33-year-old woman in despite the absence of any forensic evidence linking him to the attack and discrepancies with the descriptions provided by eyewitnesses.
In May 2021 APPEAL submitted an application to the CCRC on Mr Malkinson's behalf. This presented new forensic analysis which detected the presence of DNA belonging to an unknown male from samples taken from the victim, including under the fingernails which she said she used to cause a deep scratch on her attacker’s face.
APPEAL faced challenges in obtaining this DNA evidence as Greater Manchester Police had unlawfully lost or destroyed exhibits including items of the victim’s clothing. Luckily, samples taken from the victim's clothing along with various swabs had been retained by a separate body, Forensic Archive Limited. This meant that some new DNA analysis could, thankfully, still take place.
CCRC conducted further forensic enquiries in parallel with the Greater Manchester Police which found that the DNA was “one billion times more likely” to be DNA from an unnamed individual - “Mr B” - than Mr Malkinson. According to the CCRC, this new suspect also matches the physical description of the attacker given by the victim at the time of the offence.
Emily Bolton, Director of APPEAL and Mr Malkinson’s lawyer said: "APPEAL welcomes the CCRC’s decision to grant our client Andy the opportunity to finally clear his name, after more than seventeen years’ imprisonment for a crime of which he has always maintained his innocence.
“The battle for justice is not yet over. The Court of Appeal will now form its own view of the fresh evidence and we hope they will agree that Andy’s conviction cannot now be regarded as safe.
“We hope that the police and prosecution will not spend resources opposing this appeal and instead bring the real perpetrator of this crime to justice. The CCRC’s decision comes after hundreds of hours of investigation by APPEAL. This included commissioning new DNA analysis, interviewing witnesses and uncovering documents that were not disclosed to the defence at trial."
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.
An appeal published in the Manchester Evening News at the time 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.
CCRC Chairman, Helen Pitcher OBE, said: “This referral highlights the importance of the CCRC to our criminal justice system. New evidence can come to light years after a conviction, and in this case years after our first review of Mr Malkinson’s application.
“In the ever-changing world of forensic science, it is crucial that there is an independent body who can undertake these enquiries and send cases of concern back to court. Following Mr Malkinson’s application, we used our special powers and expertise to re-examine this case, instructing experts to undertake state of the art DNA testing."
