Police and prosecutors in the Andrew Malkinson case knew there was another man’s DNA on the victim’s clothes in 2007 – three years after he was wrongly convicted of rape – but he remained in prison for another 13 years.
Malkinson was cleared by the appeal court last month after spending 17 years in prison for a 2003 rape he did not commit. His exoneration came after fresh DNA testing linked another man to the crime.
Case files released to Malkinson as he fought his conviction, and now seen by the Guardian, reveal that police and prosecutors knew forensic testing in 2007 had found a searchable male DNA profile on the female victim’s vest top that did not match Malkinson’s.
They decided not to take further action, and there is no record they told the body responsible for investigating miscarriages of justice, though Malkinson’s lawyers were notified.
The Criminal Cases Review Commission declined to order further forensic testing, or refer the case for appeal in 2012, with the files showing the CCRC raising concerns about costs.
The DNA discovery was made in 2007 as part of a nationwide review of the forensics used in historic rape and murder cases called Operation Cube.
Malkinson, 57, was convicted of a stranger rape in Manchester in 2004 on the basis of witness evidence, with the prosecution arguing he left no DNA because he was “forensically aware”. He always maintained he was innocent.
Yet the discovery of another man’s DNA – which was not that of the victim’s then boyfriend – in a “crime specific” area of the victim’s clothes did not result in the CCRC referring his case for appeal. During the attack, the victim suffered a bite that partially severed her left nipple, meaning saliva staining on the vest above the left breast was considered “crime specific” by the Crown Prosecution Service (CPS).
A log of a meeting between the Forensic Science Service, the CPS and Greater Manchester police in December 2009 reveals that the CPS was aware of the potential enormity of the discovery.
Its then head of complex casework in Manchester said: “If it is assumed that the saliva came from the offender, then it does not derive from Malkinson. This is surprising because the area of the clothing that the saliva was recovered from was crime specific.”
However, he said “he did not see that there was a need to do any further work on the file” unless the case was brought to appeal, and then his focus would be on “bolstering” the case against Malkinson.
The CPS is supposed to write to the CCRC at the earliest opportunity about any case in which there is doubt about the safety of the conviction.
An internal log of Malkinson’s first application to the CCRC in 2009, in an attempt to appeal against his conviction, shows the body raised the cost of further testing and argued it would be unlikely to overturn the conviction.
It took three years to reject his application, and did not request the full police file or conduct new forensic tests.
Emily Bolton, Malkinson’s lawyer at the charity Appeal, said: “The documents are a shocking chronicle of how Andy was utterly failed by the body, which should have put an end to his wrongful conviction nightmare, but instead acted as a barrier to justice. An overhaul of the CCRC is needed to prevent it failing other innocent prisoners.”
By relying only on the CPS file, the CCRC missed the chance to identify disclosure failures so grave that senior judges have since ruled they would have rendered his conviction unsafe.
It was left to Appeal to uncover disclosure failures and commission more forensic tests. Without the CCRC’s automatic access to police files, they had to take extensive legal action against Greater Manchester police to access them.
Refusing to refer his case for appeal in 2012 and explaining why it would not conduct further DNA testing, the CCRC told Malkinson the cost of forensic investigation was not its “overriding consideration”. Yet the internal case log reveals the CCRC made comments including “the cost cannot be ignored” and “further work would be extremely costly”.
Malkinson has called for the head of the CCRC, Helen Pitcher, to resign and a petition urging her to apologise has more than 100,000 signatures.
Malkinson said: “If the CCRC had investigated properly, it would have spared me years in prison for a crime I did not commit.
“I feel an apology is the least I am owed, but it seems like the very body set up to address the system’s fallibility is labouring under the delusion that it is itself infallible. How many more people has it failed?”
The CCRC has previously argued that the science to exonerate Malkinson was not there when it considered his two earlier applications to appeal. While science has advanced, basic testing that isolates the male chromosome, similar to that commissioned by Appeal in 2019, existed when the CCRC was first considering Malkinson’s case and was widely used from 2003.
This testing could have been used on fingernail scrapings taken from the victim. Internal records show this was suggested as an option by a forensic scientist to the CPS in a 2009 meeting after the vest-top DNA discovery.
Internal logs from 2009 show a CCRC worker being “bemused” at the fresh application, writing: “Just because it appears there is someone else’s DNA on the complainant’s vest … cannot surely produce a hope of a successful referral in view of all the other strong ID evidence.” The comment appears to ignore the location of the DNA.
Malkinson’s lawyers say the characterisation of witness evidence as “strong” was questionable, given it was already known that Malkinson did not match the victim’s description of her attacker in key ways, including having no scratch on his face when she recalled causing “a deep scratch” and the fact that one witness picked out a different person in the identification procedure.
Refusing to refer the case for appeal in 2012, the CCRC said there was “no realistic prospect” that further testing would yield a searchable profile “capable of being compared with the national DNA database”.
Yet the CPS had already been told by scientists that the database was searchable. Part of it had been searched in 2007, without any matches identified.
A man named only as Mr B has been arrested in connection with the rape and released under investigation.
When the CCRC considered Malkinson’s case again in 2018, presented with new information about witness evidence flaws, it did not undertake a new search on the database with the DNA from the vest. Nor did it carry out its own testing or refer the case for appeal.
James Burley, Malkinson’s investigator at Appeal, said: “The CCRC’s internal comments show that in deciding not to commission any DNA testing, cost was at the forefront of their considerations. That decision may have saved the CCRC some money, but it came at a brutal cost for both Andy and the victim.
“The CCRC has been giving the false impression that a DNA breakthrough could not have been achieved by them sooner. These records show that is nonsense.”
A CPS spokesperson said: “It is clear Mr Malkinson was wrongly convicted of this crime and we share the deep regret that this happened.
“Evidence of a new DNA profile found on the victim’s clothing in 2007 was not ignored. It was disclosed to the defence team representing Mr Malkinson for their consideration.
“In addition, searches of the DNA databases were conducted to identify any other possible suspects. At that time there were no matches and therefore no further investigation could be carried out.”
Sarah Jackson, assistant chief constable of Greater Manchester police (GMP), said: “This was an appalling miscarriage of justice and I am sorry to Mr Malkinson for all that he has suffered, and for any part GMP has had in the difficult journey of proving his innocence.”
The CCRC said: “We note the observations that have been made in relation to Mr Malkinson’s case and are considering the court of appeal judgment. As we have said before, it is plainly wrong that a man spent 17 years in prison for a crime he did not commit.”
