No criminal justice system that generates a miscarriage of justice like Andy Malkinson’s can feel at ease with itself. Mr Malkinson was convicted in 2004 of a rape he did not commit. He spent 17 years in prison before being released on licence in 2020. This week, the court of appeal quashed the original conviction on the basis that DNA evidence now made it unsafe. Mr Malkinson is thus a free man. But a large part of his life has been stolen from him. As he himself put it outside the law courts on Wednesday, he was effectively kidnapped by the state.
That is disturbing enough. Now it may get more Kafkaesque still. If Mr Malkinson receives financial compensation for his wrongful conviction and his years inside – for which, on the face of it, he has a strong claim – an assessor will be expected to deduct “saved living expenses” to reimburse the prison service for the cost of his board and lodging. It is jaw-dropping that an unjustly imprisoned person can be charged in this way for their own wrongful imprisonment.
Most troubling of all in the longer run, though, is that Mr Malkinson was repeatedly let down by every level of the criminal justice system. He protested his innocence from the very start. Greater Manchester police did not believe him; they now face a possible damages claim. But nor was he believed by the Crown Prosecution Service or by a jury. Nor by the Criminal Cases Review Commission – on two separate occasions.
If campaigners led by the Appeal charity had not taken up his case – interviewing witnesses, taking the police to court to disclose documents and commissioning DNA tests – Mr Malkinson might still be in prison. Those who have listened to his interviews this week will have been struck by the measured language he has been able to summon to tell his shocking story. But it is a tale of shame for the criminal justice system nonetheless. He deserves much more than an apology – though the CCRC has not even offered that.
Miscarriages of justice are thankfully rare, but their numbers are not negligible. In the 26 years since the CCRC was given the task of reviewing alleged miscarriages and referring them to the court of appeal if there is a “real possibility” that a conviction or sentence would not be upheld, it has referred 814 such cases, of which around 70%, a high proportion, have led to acquittals.
Mr Malkinson will now be added to that number. But in fact he was badly let down by the CCRC, which failed to make full use of the DNA database that could have cleared him sooner. The review commission’s press release gives the impression that Mr Malkinson was freed because of its own work. Campaigners tell a different story. Appeal says that the CCRC was incompetent and acted as a barrier to justice.
A case like this demands a policy response as well as individual compensation. With suspiciously good timing, the Law Commission, which advises government on legal reform, launched a wide-ranging review of the law and practice on criminal appeals this week. The review is expected to take two years. If so, it would perhaps fall to a government headed by an experienced criminal lawyer, Sir Keir Starmer, to implement its recommendations. That can’t happen too soon. But proper amends to Mr Malkinson should be made even sooner.
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