A man who served 17 years in prison for a rape he did not commit has been cleared by the Court of Appeal.
Andrew Malkinson, 57, was found guilty of raping a woman in Greater Manchester in 2003 and the following year he was jailed for life with a minimum term of seven years.
However, his barrister Edward Henry KC told the court on Wednesday that because he maintained he was innocent and “would not falsely confess to abhorrent crimes which he did not commit”, Mr Malkinson served a further 10 years in jail after his tariff expired.
Mr Malkinson had been fighting to clear his name and his case was referred to the court in January by the Criminal Cases Review Commission (CCRC), which investigates potential miscarriages of justice.
Recently-obtained DNA evidence had linked another potential suspect to the crime.
Mr Henry told the court that samples of DNA which were “rigorously tested” had been preserved over many years but that “most regrettably” items of the victim’s clothing had been “destroyed by Greater Manchester Police”.
At the time of Mr Malkinson’s trial, there was no DNA evidence linking him to the crime and the prosecution case against him was based solely on identification evidence.
Overturning his convictions, for two counts of rape and one of choking or strangling with intent to commit rape, Lord Justice Holroyde said Mr Malkinson could “leave the court free and no longer be subject to the conditions of licence”.
Lord Justice Holroyde said other points argued by Mr Malkinson’s legal team, about “crucial” material that was not disclosed at the time of his trial, “raised a number of substantial and important points” and the court would take time to consider them and give a decision on them later in writing.
He added: “However, we must keep Mr Malkinson waiting no longer to know the outcome of his appeal.”
The Crown Prosecution Service (CPS) had conceded Mr Malkinson’s conviction is unsafe because the new DNA evidence points to another man, who the court ordered can only be identified as Mr B, and says there “must now be a real possibility” he will be charged over the attack.
The CPS and Greater Manchester Police (GMP) confirmed in May they would not contest the appeal and the court is likely to quash his conviction.
After Mr Malkinson’s release, advancements in scientific techniques allowed his legal team, supported by legal charity Appeal, to provide new DNA analysis that cast doubt on his conviction to the CCRC.
The body then commissioned its own testing which found that DNA from the victim’s clothing matched another man on the national police database.
GMP confirmed in January that a man had been arrested and released under investigation in light of the new information, but no decision has been made as to whether he will be charged.
