Wrongly jailed Andrew Malkinson ‘could have been freed decade earlier’

Andrew Malkinson, who was wrongly convicted of rape and jailed for 17 years, was “failed” by the Criminal Cases Review Commission and could have been exonerated almost a decade earlier, a review has found.

The CCRC “obstructed my fight for justice and cost me an extra decade wrongly imprisoned”, Mr Malkinson said in light of the findings, as he called for a complete overhaul of the body and repeated demands for its chairwoman Helen Pitcher to be sacked.

Justice Secretary Shabana Mahmood said Ms Pitcher is “unfit to fulfil her duties” and she is seeking her “removal from that position” in the wake of the report.

His 2003 conviction was quashed last summer after years protesting his innocence.

He and legal charity Appeal applied for his case to be reviewed by the CCRC in 2009 but at the conclusion of its review in 2012 the commission refused to order further forensic testing or refer the case for appeal amid concerns over costs.

A second application was rejected in 2020.

This report lays bare how the CCRC obstructed my fight for justice and cost me an extra decade wrongly imprisoned

Crucial DNA evidence had been available since 2007 but no match was found on the police database at the time.

Last year officers arrested a new suspect on suspicion of the July 2003 rape after the discovery of the new DNA evidence in the case. The 48-year-old man from Exeter has been released under investigation and Greater Manchester Police (GMP) said a file has been passed to the Crown Prosecution Service for consideration.

Chris Henley KC, who was drafted in by the CCRC to carry out the review, laid bare a string of “serious” failings and missed chances to correct the miscarriage of justice as early as 2009, including revealing the body had even considered rejecting requests for a referral to the Court of Appeal for a third time.

Making nine recommendations for improvement in his report, published on Thursday, he said: “The CCRC failed him. It required Appeal to obtain the new DNA evidence that ultimately resulted in the further work that led to the referral by the CCRC. It would not have happened otherwise.

“The opportunity to have this case referred in 2009 was missed, and a further opportunity to look again at the DNA evidence when the second application was received in 2018 was not taken.”

Referring to Appeal’s later requests to re-test samples in 2019, he said: “I have seen nothing to persuade me that the CCRC would have independently considered that retesting was justified or had any prospect of producing anything new which might call into question the safety of the conviction.”

Mr Malkinson’s legal team previously discovered striking similarities between his ordeal and the earlier CCRC case of Victor Nealon , whose 1997 conviction was overturned by the Court of Appeal in December 2013 after new DNA evidence was unearthed.

Mr Nealon’s case “undoubtedly bore similarities to Mr Malkinson’s case”, Mr Henley said, adding: “In my view Mr Malkinson’s conviction would have been quashed almost 10 years earlier than it was, if the Nealon judgment had been properly understood and followed.”

Mr Malkinson said: “This report lays bare how the CCRC obstructed my fight for justice and cost me an extra decade wrongly imprisoned.

“The finding that in 2022 the CCRC was considering rejecting my case for a third time, despite the compelling DNA evidence presented by my legal team, shows that the body is biased through and through. It needs to be torn down and completely rebuilt.

“If Helen Pitcher and her leadership team won’t resign after a scathing report like this, they should be sacked.”

James Burley, who led legal charity Appeal’s investigation into Mr Malkinson’s case, said the CCRC was a “broken safety net” as he branded the report “utterly damning”.

“The new Justice Secretary should bring in a fresh leadership team at the CCRC that is serious about rooting out wrongful convictions”, he added.

Ms Mahmood said: “It was sobering to read Chris Henley KC’s findings. My thoughts are with both Andrew Malkinson and the victim of this horrific crime.

“Having studied Chris Henley’s report closely, it is my firm view that Helen Pitcher is unfit to fulfil her duties as chair of the CCRC. I have therefore begun the process to seek her removal from that position.”

Ms Pitcher offered Mr Malkinson an “unreserved apology” in April when she received the findings of the review and said it was “clear the commission failed Mr Malkinson”.

“For this, I am deeply sorry and wish to offer my sincere regret and an unreserved apology on behalf of the commission,” she said.

“Nobody can begin to imagine the devastating impact that this wrongful conviction has had on Mr Malkinson’s life, and I am deeply sorry for the additional harm caused by our handling of the case. On behalf of the commission, I offer my deepest regret.”

In response to the report, the CCRC said “we will learn from the mistakes that were made”, adding: “Mr Henley’s recommendations will be acted upon, and work to address them has already started.”

A separate inquiry ordered by the previous Government into Mr Malkinson’s case is ongoing.