A man has been arrested on suspicion of committing a rape for which another man served 17 years in prison.
Andrew Malkinson was convicted of raping a 33-year-old woman by a motorway in Greater Manchester in 2003. The case is being sent back to the court of appeal after a DNA breakthrough.
A 48-year-old man from Exeter was arrested on 13 December last year on suspicion of the rape, Greater Manchester police confirmed on Tuesday. He has been released under investigation.
There was never any DNA evidence linking Malkinson to the crime and he always insisted he was innocent, spending a decade longer in prison as a result.
A DNA profile on the victim’s clothing was found by experts commissioned by the Criminal Cases Review Commission (CCRC), which decides if cases can be referred back to the court of appeal.
The CCRC had been considering Malkinson’s case since his lawyer at the charity Appeal sent it new DNA evidence in May 2021 said to show traces of another unknown male on fragments of the victim’s clothes.
Malkinson, who went for a long walk by the sea on learning the news, 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 prosecution’s case relied entirely on eyewitness identification, and the lack of DNA evidence was explained away by saying Malkinson was “forensically aware” and had deliberately not left any trace.
Malkinson did not match key parts of the victim’s original description of the attacker. She said she remembered causing a “deep scratch” to her attacker’s right cheek but Malkinson was seen at work with no scratches the next day. He was also 3in taller, had chest hair, when her attacker’s chest was described as hairless and shiny, and had prominent tattoos on his forearms when no tattoos were mentioned.
Testing using new forensic techniques in 2020 showed traces of male DNA on fingernail scrapings, as well as on fragments of her clothing, that did not match Malkinson.
Emily Bolton, the director of Appeal and Malkinson’s lawyer, said they welcomed the chance to clear his name but that “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.”
Bolton said she hoped police and the prosecution would focus their resources on bringing “the real perpetrator of this crime to justice”, rather than opposing the appeal.
The CCRC had twice previously turned down Malkinson’s attempts to overturn his conviction, in 2012 and 2020. It said the science used in its latest review was not available when it first looked at the case.
Helen Pitcher, the chair of the CCRC, 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 inquiries 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. The new results raise concerns about the safety of these serious convictions. It is now for the court of appeal to decide whether they should be quashed.”
A GMP spokesperson said: “Greater Manchester police will continue to assist and co-operate with the CCRC’s review of this case. 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.”
