Andrew Malkinson, who spent 17 years in prison for a rape he did not commit, has accused the body that investigates miscarriages of justice of having an “attitude problem” and said it had still not contacted him since he was cleared by the court of appeal last month.
Malkinson and his legal team first heard that the Criminal Cases Review Commission was launching a review into its handling of his case after the Guardian contacted them about it on Thursday.
Malkinson, 57, was convicted in 2004 over a rape in Greater Manchester the year before that he did not commit.
The CCRC twice considered his case before referring it for appeal after fresh DNA testing linked another man to the crime.
The Guardian revealed earlier this week that the commission knew during his first application in 2009 that another man’s DNA had been found in a “crime specific” location on the victim’s clothes, but declined to do further forensic testing, request the full police file or refer the case for appeal.
The CCRC’s chair, Helen Pitcher, discussed the case with the justice minister, Alex Chalk, on Wednesday and announced the review on Thursday.
Since then, several senior figures in the legal and judicial system have said one of the chief issues the CCRC is facing is underfunding.
However, Malkinson said: “The problem at the CCRC is attitude. They were set up as an independent body to investigate suspected miscarriages of justice.
“They are misconstruing independence as being independence from the prisoners like me applying to them, rather than independence [from] the agencies that wrongfully convicted us.
“The CCRC have not communicated with me since my conviction was overturned. We found out that they were launching an inquiry into my case from a journalist because she had received a press release. That is the attitude problem, right there.”
Pitcher has not given an interview since Malkinson’s conviction was overturned last month. Malkinson has called for a broader public inquiry and an apology from Pitcher.
James Burley, the charity Appeal’s investigator on Malkinson’s case, said: “Andy’s case highlights institutional failings at the CCRC, including its lack of an investigative mindset and deference to the courts and police. These problems have festered because the CCRC is not accountable.
“Flawed CCRC decisions can only be challenged by judicial review, which is expensive and ineffective. A new free and independent tribunal is needed to ensure flawed CCRC decisions can be scrutinised and challenged by those seeking to clear their names.”
Prof Graham Zellick, who was chair of the CCRC until 2008, told the BBC’s Today programme on Friday that the government had diminished the commission. “The workload has gone up very considerably since I left in 2008. Sadly, the funding hasn’t risen commensurately,” he said.
“[The] government bears considerable responsibility for diminishing in many ways the role and capacity of the commission, and that needs to be looked at.”
As well as running the CCRC, Pitcher is chair of the judicial appointments commission. When asked if this was a conflict of interest, Zellick told the BBC that Pitcher used to be his student and described meeting judges regularly when he was in post.
Malkinson’s lawyer, Emily Bolton, said: “Institutional culture is set by who you select to lead, who you hire and who you talk to. CCRC’s investigation advisers are ex-police, their executives are barristers, their previous chair was a prosecutor and the current chair appoints judges.
“In Today’s interview with previous chair Graham Zellick, he talked about how often he had meetings with the senior judiciary when he was in post. But investigation is not about what the law is, it is about what the facts are, and about what facts have been covered up by agents of the law.
“Investigative journalists have the skills that CCRC need, not barristers and judges. Their expertise is in legal decision-making and that should come last, when all the facts have been uncovered. With only half the facts, case decisions will always be flawed, whether at the CCRC level or in the court of appeal.”
The CCRC has been contacted for comment.
A spokesperson said on Thursday: “A review into the decisions taken in Mr Malkinson’s case couldn’t be started until we had the judgment from the court of appeal, but we have long recognised that it would be important to have one.
“We will be as open as we can be within our statutory constraints with the findings of the completed review and the lessons to be learned.
“This is a complex case in which many elements have informed the decisions taken. We recognise that Mr Malkinson has had a very long journey to clear his name, and it is plainly wrong that he spent 17 years in prison for a crime he did not commit.
“We have already been in touch with Greater Manchester police and with the Crown Prosecution Service to offer our assistance in any of their inquiries.”
A Ministry of Justice spokesperson said: “The lord chancellor has been clear he is committed to uncovering any lessons learned in Andrew Malkinson’s case. He is carefully considering how best to get the answers Mr Malkinson deserves.”
