Andrew Malkinson - exonerated after 20 years

The Court of Appeal has ruled that Andrew Malkinson’s 2004 conviction was unsafe because Greater Manchester Police (GMP) withheld key evidence from the defence at his trial.

On 26 July 2023, the Court quashed Mr Malkinson’s wrongful conviction for rape, for which he spent over 17 years in prison, in view of new DNA evidence implicating another suspect.

Giving its full judgment on 7 August, the Court additionally held that the police’s failure to disclose the following evidence to Mr Malkinson’s defence provided a further basis for overturning his conviction:

• Photographs showing the victim’s hands, which contradicted medical evidence used to cast doubt on her account of causing a “deep scratch” to her attacker’s face. (Seen by police officers the day after the attack, Mr Malkinson had no trace of any such injury.)

• The criminal convictions, including for dishonesty offences, of key prosecution witnesses Michael Seward and Beverley Craig. (These witnesses, who provided the only supporting evidence for the victim’s identification, were portrayed to the jury as honest.)

The Court held that these disclosure failures disadvantaged the defence, breaching Mr Malkinson’s right to a fair trial.

Giving the Court’s judgment, Lord Justice Holroyde said “if the photographs had been disclosed, the jury’s verdicts may have been different”.

In relation to Mr Seward and Ms Craig’s undisclosed convictions, Lord Justice Holroyde said:

“…cross-examination about the witnesses’ previous convictions would have been capable of casting doubt on their general honesty and capable of affecting the jury’s view as to whether they were civic-minded persons doing their best to assist. …In our judgement, the challenge to the character and credibility of those two identifying witnesses would have been capable of affecting the jury’s overall view as to whether they could be sure that the appellant was correctly identified.”

Dogged investigation by APPEAL, including twice taking GMP to court, brought the disclosure failings to light many years after the trial.

Responding to the decision, Greater Manchester Police (‘GMP’) issued an apology, stating Mr Malkinson “is the victim of such a grave miscarriage of justice, in being convicted of a crime he did not commit and serving a 17-year custodial sentence”.

Andy Malkinson was released from HMP North Sea Camp in December 2020, having served over 17 years in prison for a crime he did not commit. Although his sentence could have allowed for his release after six and a half years, Andy’s consistent protestations that he did not carry out the 2003 rape for which he was convicted caused him to spend an extra decade behind bars.

Why did it take 20 years for Andy to see justice?

The Court’s judgment raised serious questions for the Criminal Cases Review Commission (CCRC), the public body which is meant to investigate miscarriages of justice but twice rejected Mr Malkinson’s case (in 2012 and 2020).

Speaking outside the Royal Courts of Justice after his conviction was quashed, Mr Malkinson said of the CCRC: “They didn’t investigate and they didn’t believe me. Not once, but twice.”

In 2009, the CCRC was made aware that DNA which could not have come from Mr Malkinson nor the victim was present in an area of potential saliva staining on her vest top, just above where she sustained a bite to her nipple.

Despite this finding, the CCRC issued a decision in 2012 refusing to grant Mr Malkinson a new appeal. The body also refused to commission any further DNA testing.

In 2020, the CCRC turned down another application from Mr Malkinson, again failing to make any forensic enquiries.

After APPEAL commissioned DNA testing which revealed the presence of male DNA which could not have come from Mr Malkinson in several other samples from the victim and her clothing, the CCRC in 2022 finally arranged a search of the National DNA Database.

This linked the DNA from the vest top to a new suspect, ‘Mr B’, who was subsequently arrested by police. However, Mr B’s DNA profile had been sitting on the database from 2012 – meaning the CCRC could have identified him as a suspect years earlier.

Despite having the legal powers to do so, the CCRC did not obtain and review the police’s case files – meaning it failed to uncover the disclosure failings which the Court has ruled renders Mr Malkinson’s conviction unsafe.

If the CCRC had uncovered the disclosure failings and referred Mr Malkinson’s case to the Court of Appeal in 2009, when he first applied to the body, he would have been spared a decade of wrongful imprisonment.

#NotTheOnlyOne

As shocking as Andy’s story may be, it is not a one off. We believe there are many other people in prison for crimes they did not commit. While investigating Andy’s case we discovered multiple flaws in the system - each one representing a snare that can entrap anyone in a wrongful conviction and even worse, make it much harder for that error to be identified and rectified.

It is clear that root and branch reform of the system is the only way to address this. You can read about some of our ideas for how the system can be improved in our briefings here.

“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.

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.

I want Helen Pitcher to apologise and take accountability for the CCRC’s failures, which cost me extra years behind bars for a crime I did not commit.

I want politicians to give people seeking to prove their innocence a right to access the evidence on their case – since the police and CCRC have proved they cannot be trusted.”

Andy Malkinson

APPEAL gives huge thanks to the pro bono lawyers from firms Ropes & Gray, Latham & Watkins, Mishcon de Reya and Morrison Foerster who have donated many hours to Andy’s case.

Last year award winning journalist Emily Dugan presented a six-part investigative podcast about Andy’s case.