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Andrew Malkinson scandal: CCRC untruths, untruths, and more untruths

Andrew Malkinson

The Criminal Cases Review Commission (CCRC) exists to establish the truth. How ironic that what it does more often than not is tell untruths in an attempt to obscure its frequent failings. In the case involving Andrew Malkinson the CCRC has been issuing press releases for the past six months that are simply untruthful in an effort to deflect blame for the serious failures involved in rejecting his submissions to the CCRC.

Over the course of the Malkinson saga of appeals the behaviour of staff at the Crown Prosecution Service (CPS), the Greater Manchester Police (GMP) and the CCRC has literally been sadistic. In each organisation persons were employed who knew at the very least that forensic evidence indicated that Andy Malkinson had been wrongly convicted. Instead of instigating urgent enquiries to establish his innocence, those organisations embarked on a determined scheme to find any evidence that might bolster the prosecution case against him. There was no such evidence, but the authorities allowed Malkinson to remain in prison in deep distress for 17 years.

Andrew Malkinson was convicted of rape. Although the minimum term of his life sentence was specified as 6 years and 125 days, he in fact remained in custody for 17 years before being released on 18 December 2020 subject to the conditions of his life licence. Throughout those many years, he adamantly maintained that he was innocent of the crimes and had been wrongly convicted.

It was revealed by the BBC on Wednesday 16 August 2023 that it was known just three years into Andy’s sentence to the Crown Prosecution Service (CPS), the Greater Manchester Police (GMP) and in due course by the CCRC that the DNA of a different man was found on an item of clothing belonging to the rape victim. Forensic scientists confirmed this in 2007 after a nationwide operation to review biological samples from "cold case" unsolved crimes in the hope that technical advances in DNA profiling could identify more suspects.

In Andy Malkinson's case, the scientists tested for new DNA from the victim's clothing - and documents now disclosed to Andy Malkinson show that in December 2009, the forensic scientists told Crown Prosecution Service lawyers and Greater Manchester Police detectives they were sure they had identified DNA from an unknown man's saliva. The CPS, headed by Keir Starmer at that point, refused to inform the CCRC that Malkinson had to be regarded as innocent; however, this does not exonerate the CCRC as they had no intention of investigating his case anyway.

Between 2007 and 2009 the scientists carried out two searches on the National DNA Database for a match to known suspects. Those searches did not yield a match to any man - a result that also further underlined that the DNA sample examined could not have come from Mr Malkinson. In 2009, Malkinson submitted a second submission to the CCRC asking them to investigate his case. The CCRC was at that point aware that the saliva of another man had been found on a vest belonging to the victim. Despite this, the CCRC refused to investigate.

James Burley, the investigator at APPEAL, the charity that took on Mr Malkinson's case, said the CCRC's decision-making had been "deeply flawed".

"If the CCRC had applied common sense, it would have granted Andy a new appeal in 2009," said Mr Burley.

"Instead, the CCRC said this evidence wasn't enough and then failed to carry out DNA enquiries which might not only have further supported Andy's innocence but identified the new suspect years sooner."

As the Malkinson case has been unfolding, the CCRC has issued a number of statements to the public in an attempt to cover up the gross ineptitude of their staff over a period of many years in rejecting two of Andy Malkinson’s previous applications. The CCRC’s incompetence cost Andy Malkinson many years of his life as a potentially free man and has probably blighted his life forever as it is clear that he has suffered deep and perhaps irrevocable mental health damage during his time in prison. See our previous article outlining CCRC deceptions here.

Paramount to the function of the CCRC is a requirement that the organisation is honest about its activities. Recently, it became apparent that the Chairman, Helen Pitcher, was deliberately fraudulent in public statements drafted for her approval.

On 26 July the CCRC released a statement attributed to Pitcher:

“We welcome the court’s decision to overturn Andrew Malkinson’s convictions on the basis of new DNA evidence. In the ever-changing world of forensic science, new evidence can come to light years after a conviction. We used our special powers to take advantage of DNA breakthroughs to find evidence that we considered could overturn this conviction. “We recognise that Andrew has had a very long journey to clear his name, but sadly the evidence that led to the court overturning his conviction only became available years after his conviction.”

Just about every word in that CCRC statement is untrue. There was no ‘new’ DNA evidence, it has existed for the past 20 years. There were no DNA ‘breakthroughs’ and ‘new’ evidence did not come to light years after Andy’s conviction, it was found in 2007. This was confirmed to CCRC Watch by the Forensic Science Regulator who, prompted by us, enquired of the CCRC the truth about the DNA analysis and told us on 29 July, “From the information we have received (from the CCRC) the term “state of the art” has been used (by the CCRC) to refer to the most up to date analysis techniques, rather than a new technique.

Therefore, disassembling the CCRC press releases reveals that the CCRC did not use any special powers to take advantage of DNA ‘breakthroughs’. There were no ‘breakthroughs’ - the DNA evidence that secured Andy’s exoneration was there all along. It was there in 2009 when the CCRC rejected his submission to them; the CCRC simply could not be bothered to look for the evidence. The simple fact is that the DNA evidence that Greater Manchester Police thought they had illegally destroyed was very fortunately not the only DNA evidence available and a small amount of evidence was held at a separate location, the Forensic Archive, and the charity APPEAL was able to locate it and with dogged determination secure Andy’s exoneration at the Court of Appeal.

In a Press Release issued on 24th January 2023 the CCRC announced that:

“The Criminal Cases Review Commission (“CCRC”) has referred a man’s rape and assault convictions to the Court of Appeal after new DNA testing has revealed a potential alternative suspect. Andrew Malkinson was sentenced to life imprisonment after being convicted of rape in 2004. After spending 17 years in custody, he was released from prison in December 2020, on licence. As a result of scientific developments, experts instructed by the CCRC have now obtained a DNA profile on the victim’s clothing which matched another man on the National DNA Database. In light of this, the CCRC has decided that there is a real possibility that the Court of Appeal will quash Mr Malkinson’s convictions. Mr Malkinson had previously applied to the CCRC twice before, but the first application was made at a time before modern DNA evidence was available and the second concentrated on issues concerning the identification witnesses”.

The CCRC stated in a ‘Notes to Editors’ comment: “Mr Malkinson previously applied to the CCRC in 2009. During that review, the CCRC reviewed the DNA analysis that had been undertaken previously and was advised by the Forensic Science Service that there was no real prospect of further testing producing any significant new evidence. [Really? This was the same forensic science service that had identified the DNA of another suspect in 2007!] Since the conclusion of that review in 2012, there have been significant improvements in forensic science, including the DNA testing which has led to this referral. That first review also concluded prior to the matching profile being added to the DNA database.”

In April 2021, the charity APPEAL commissioned new DNA testing which revealed the presence of unknown male DNA in samples taken from the victim and her clothing.

According to APPEAL, the new DNA breakthrough was only possible because samples had been retained in a forensic archive which the CCRC had neglected to search. Crucial exhibits were lost or destroyed by Greater Manchester Police, despite the force having a strict legal duty to retain them, meaning they were not available to be tested.

APPEAL presented these DNA results to the CCRC, who belatedly have been able to identify an alternative suspect via a search on the National DNA Database. Greater Manchester Police (‘GMP’) are now said to be investigating this suspect.

Building on the new DNA analysis commissioned by APPEAL, the CCRC conducted further forensic enquiries in parallel with the GMP which found that the DNA was “one billion times more likely” to be DNA from an unnamed individual - “Mr B” - than Mr Malkinson.

According to the CCRC, this new suspect also matches the physical description of the attacker given by the victim at the time of the offence.

The charity organisation APPEAL said:

“The CCRC’s decision comes after hundreds of hours of investigation by APPEAL. This included commissioning new DNA analysis, interviewing witnesses and uncovering documents that were not disclosed to the defence. “The DNA breakthrough in this case was very nearly rendered impossible by the police’s unlawful failure to retain key exhibits – and we will continue to push for accountability.”

The May 2023 directions hearing at the Court of Appeal (CoA) revealed missed opportunities by the CCRC to revisit Malkinson’s conviction. Further forensic testing in 2009 revealed traces of mixed DNA in saliva on the victim’s bra that did not match Malkinson’s, but the CCRC allegedly did not think it was enough to refer the case for appeal and cited “cost” as a factor in their decision making despite the CCRC insisting in Annual Reports that the cost of conducting testing would never be a factor..

Of course, it is now apparent that the DNA discovered was indicative that someone other than Andy Malkinson attacked the victim. The CCRC should have listened more carefully to Malkinson when he insisted that he was innocent, but the CCRC culture that regards all applicants as guilty surely prejudices their staff towards dismissing such claims from applicants.

As CCRC Watch continues to repeatedly point out, it is within the unique powers conferred upon the CCRC to investigate and demand access to undisclosed materials and the CCRC is the only body in the UK authorised to demand that the police disclose documentation.

The new evidence was discovered by the charity APPEAL, but why was this not discovered at least 14 years ago by the CCRC? It seems pure luck that GMP did not succeed in destroying all of the evidence referred to – it was the CCRC’s responsibility to ensure that it was not lost. It appears that whoever considered Andy Malkinson’s 2009 submission could not be bothered to seek the necessary documentation from GMP.

The CCRC refuses to disclose to CCRC Watch vital information about how a successful application was made based on allegedly new DNA evidence. We pointed out to the CCRC that if there is a new DNA analysis method that can ‘find’ DNA evidence that was not previously available, it could benefit many more people if that method was made public. On 28 January 2023 we wrote to the CCRC as follows:

"It is known that in 1999 the six-locus SGM profiling system was changed to a 10-locus profiling system known as SGM+ which is said to have discrimination potential beyond one in a billion, thus providing a surer statistical estimate. Low Copy Number (LCN) DNA, a specific form of Low Template analysis offered by the FSS since 1999 is a much more sensitive variation of SGM+. Whereas conventional SGM+ analysis requires 50–100 cells for there to be sufficient DNA to yield a profile, LCN requires just 15–20 cells, allowing profiles to be yielded from miniscule amounts of biological material—such as skin cells or sweat residue from a single fingerprint on a variety of items which an offender may have touched or come into contact with. So my question is, How does the new technique(s) used in analysing the Malkinson case differ from LCN DNA analysis? How did the analysis used lead to an improved DNA profile in the Malkinson case? What techniques and technology were used now that were not available in 2009 when the CCRC last reviewed the DNA? You have also said that the CCRC was first alerted to potential forensic developments in 2020. How did this occur and what was the form of the alert?"

The CCRC responded: “I’m afraid the CCRC cannot publicise operational detail about investigations and is bound by legal limitation of what we can share publicly from our case reviews”

If the CCRC continues to refuse to disclose the DNA analysis methods used it will be the case that the only person to benefit from the newly found techniques (if these are indeed newly established) will be Andrew Malkinson; everyone else who might benefit can take a hike as far as the CCRC is concerned. Surely, it cannot be right that the CCRC allegedly knows of novel DNA analysis methods but will deny access to people desperate to clear their names? Is this simply a ruse to save money by deterring other applicants to renew their requests for DNA analysis of evidence?

But, what about the alleged scientific developments? In the case of Andrew Malkinson, following the rejection of his submission in 2009 the CCRC states that “there have been significant improvements in forensic science, including the DNA testing which has led to this referral”. If that is the case, who at the CCRC was monitoring Mr. Malkinson’s case and reassessing it in light of the improvements in forensic science?

The fact is that nobody was, he had been forgotten by the CCRC and there are seemingly no processes in place at the CCRC to alert Case Review Managers to developments of any nature that might impact upon previous submissions. And, as it turns out, Malkinson may have been extremely fortunate that APPEAL was assisting him, as many more like him in the future are predicted to be let down by the forensic archive system.

On 7 August 2023, the CCRC issued a response to the Andrew Malkinson CoA judgment:

"The CCRC referred Mr Malkinson’s case in January 2023. He had applied to the CCRC twice previously, but the first application was made at a time before current DNA techniques were available and the second concentrated on issues concerning the identification procedure."

This is not true as shown above.

"The Court of Appeal’s judgment found strongly in favour of the grounds of DNA evidence that matched an alternative suspect, which came through the CCRC’s forensic testing."

This is not true as shown above.

Helen Pitcher OBE, chairman of the CCRC, said:

“It is plainly wrong that a man spent 17 years in prison for a crime he did not commit.

“In each review, we focused on the submissions made to us. But knowing what we know now we would have sought the undisclosed police evidence to refer this case."

This is not true as shown above.

“We are pleased that the CCRC’s work to match an alternative suspect on the DNA database has been so strongly referenced in the judgment.”

This is not true as shown above.

Untruth, after untruth after untruth from Helen Pitcher. Is there any wonder that the public have no confidence in the CCRC? There are now demands for an enquiry into what went ‘wrong’ in handling Andy Malkinson’s pleas of innocence. Such an enquiry will, hopefully, identify the extent of duplicity by the CCRC, among others and lead to significant reform of the organisation, or perhaps abolition.

A final thought. What accountability is there for all those people who conspired to keep Andrew Malkinson imprisoned? Greater Manchester Police have two police officers who at the very least may have conspired to pervert the course of justice. Are they going to be investigated? Several witnesses may also have committed perjury. Staff at the Crown Prosecution Service may have conspired to keep the discovery of DNA hidden in 2007 – does this not amount to misconduct in public office and conspiracy to pervert the course of justice? Why has nobody in power even suggested that some people should end up suffering the same fate as Andrew Malkinson and be imprisoned for what they did to him?

By Bill Robertson

Bill Robertson has researched alleged miscarriages of justice for around 20 years and advised on several cases, including the most recent application to the CCRC by Jeremy Bamber.

Please let us know if you think that there is a mistake in this article, explaining what you think is wrong and why. We will correct any errors as soon as possible.

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