The conviction of a man who spent 17 years behind bars for a rape he did not commit was unsafe because police withheld crucial information from his defence lawyers, the court of appeal has found.
Andrew Malkinson was wrongly convicted of raping, beating and strangling a woman in 2003 after he was picked out of a police lineup, despite not matching the victim’s description of the attacker.
His conviction was quashed on 26 July this year, after DNA evidence linked another man to the crime.
A full judgment from the court of appeal on Monday found Malkinson’s right to a fair trial had been breached when Greater Manchester police failed to hand over crucial evidence that should have been disclosed to his defence team.
These pieces of evidence, if the defence had known about them, would have meant “the jury’s verdicts may have been different”, according to the judgment, delivered by Lord Justice Holroyde, vice-president of the court of appeal.
Greater Manchester police were deemed to have unlawfully withheld photographs of the victim and information about two unreliable witnesses, who were presented to the court as honest.
One of the witnesses had been asked to “look again” at a police lineup after picking out a different man, later changing it to Malkinson. The other witness was not asked to pick out the attacker until after he had been described in the press, and his memory may have been impaired by heroin and cannabis on the night of the attack. Both witnesses had previously been prosecuted for offences that included dishonesty.
The photographs were significant as the victim said she had scratched her attacker’s face hard enough to break her nail, though Malkinson appeared at work the next day with no scratches, indicating he could not be the man who committed the crime. In court, doubt was cast on the victim’s memory of the attack, which was crucial to the conviction, and the jury was not shown photographs of the victim’s hands, which may have shown a broken nail.
Malkinson said he believes he would have never been convicted had that evidence been available at the time.
Responding to the court’s judgment, Malkinson, 57, said: “I feel vindicated by the court’s finding that Greater Manchester police unlawfully withheld evidence, denying me a fair trial and causing my wrongful conviction nightmare.”
He added that he was seeking an apology from the Criminal Cases Review Commission (CCRC), the public body that is meant to investigate miscarriages of justice, which dismissed his case twice, in 2012 and 2020, despite having the legal powers to look into the evidence.
He added: “The evidence needed to overturn my conviction has been sitting in police files for the past two decades. Yet the CCRC did not bother to look, and it fell to the small charity Appeal to bring it to light.”
James Burley, who led Appeal’s investigation into Malkinson’s case, said: “This ruling makes clear that Andy’s wrongful conviction was the direct result of the police unlawfully withholding evidence at his trial.
“It shows why in an adversarial system, the police cannot be relied upon to act as trustworthy gatekeepers to the evidence.”
Malkinson’s conviction was overturned when DNA samples from the victim’s clothing, which had been preserved in a forensic archive, were tested and found to contain DNA from someone who was likely to have been the attacker. This breakthrough was almost missed as the victim’s vest top, bra, knickers and other clothing were destroyed by GMP, despite a preservation order being in place.
The force apologised to Malkinson after the judge’s decision, saying he had been a victim of a “a grave miscarriage of justice”.
After his release from prison, Malkinson was told “board and lodging” could be deducted from his compensation, a rule which has now been scrapped by the justice secretary, Alex Chalk KC.
