Man wrongly jailed over rape could have been freed nearly a decade earlier

Andrew Malkinson, who spent 17 years behind bars after he was wrongly convicted of rape, could have been exonerated nearly a decade before he was finally freed, according to a damning review.

The review by Chris Henly KC found the Criminal Cases Review Commission (CCRC) missed several chances to help Mr Malkinson.

He and legal charity Appeal applied for the case to be reviewed in 2009 after crucial new DNA evidence emerged which made clear ‘he might be innocent’. A second application was rejected in 2020.

Mr Henly found case records suggesting the CCRC considered rejecting Mr Malkinson’s case for a third time in 2022 – a year before his conviction was quashed.

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.’

Mr Henly added: ‘It concerns me that if the new DNA evidence had not been obtained and only the disclosure failures… had come to light, the CCRC would not have made the referral.

‘This suggests… that the CCRC is taking too cautious an approach. This needs urgently to change.

‘The CCRC must learn from this. It must aspire to capturing more miscarriages of justice.

‘The question should always be “might this be a miscarriage case” rather than an exercise in thinking of reasons why the Court of Appeal might reject the referral.’

Mr Malkinson said the CCRC ‘obstructed my fight for justice and cost me an extra decade wrongly imprisoned’ and ‘needs to be torn down and completely rebuilt’.

His renewed calls for chairwoman Helen Pitcher to be sacked were backed by new Justice Secretary Shabana Mahmood, who said she is ‘unfit to fulfil her duties’.

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.’

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.

Mr Henly’s review also found Mr Malkinson’s exoneration was delayed because the CCRC failed to learn lessons from its handling of a similar case.

Victor Nealon’s 1997 attempted rape conviction was overturned by the Court of Appeal in December 2013 after two failed applications when his lawyers uncovered new DNA evidence.

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.’

In response to the findings, 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.

‘I’m pleased Mr Henley has condemned the CCRC’s Chair for putting off her apology and cynically trying to spin the CCRC’s mishandling of my case as a success. If Helen Pitcher is truly sorry, she’ll step down and let someone serious about fighting miscarriages of justice take charge.

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

‘The CCRC’s delay in publishing this report and its decision to conceal the names of the personnel whose actions caused me so much suffering is shameful. Both the public and I deserve transparency and accountability, but the CCRC is more concerned with protecting its people from criticism.’

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 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.

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