Andrew Malkinson
First, the good news is that Andy Malkinson’s case has finally been referred to the Court of Appeal. Mr. Malkinson was released from HMP North Sea Camp in December 2020, having served over 17 years in prison for a crime he has always said he did not commit. Although his sentence allowed for his release after six and a half years, Mr Malkinson’s constant assertions that he did not carry out the 2003 rape for which he was convicted caused him to spend an extra decade behind bars. Malkinson was arrested for the rape of a 33-year-old woman in July 2003. He told police DNA tests would clear his name, but the victim picked him out in a video identity parade and told the court she was “more than 100% certain” he was her attacker, even though in numerous respects he did not match her original description of the rapist. Following a trial at Manchester Crown Court, Mr Malkinson was convicted, by majority verdict, on 10 February 2004.
On 24th January 2023 the Criminal Cases Review Commission (CCRC) referred his case to the Court of Appeal, but it follows two previous refusals to refer the case. The current referral owes nothing to the diligence of the CCRC, despite what they claim in their press release:
New DNA breakthrough leads to rape and assault conviction being sent back to the Court of Appeal
“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.
CCRC Chairman Helen Pitcher OBE said:
“This referral highlights the importance of the CCRC to our criminal justice system. New evidence can come to light years after a conviction, and in this case years after our first review of Mr Malkinson’s application. In the ever-changing world of forensic science, it is crucial that there is an independent body who can undertake these enquiries and send cases of concern back to court. Following Mr Malkinson’s application, we used our special powers and expertise to re-examine this case, instructing experts to undertake state of the art DNA testing. The new results raise concerns about the safety of these serious convictions. It is now for the Court of Appeal to decide whether they should be quashed.”
Note that in Pitcher’s boasting there is no mention of the charity organisation called APPEAL.
A close inspection of the process whereby Malkinson’s case succeeded in being referred reveals that Pitcher’s statement is nothing but disingenuous ‘spin’. The CCRC did virtually nothing to secure the DNA evidence that is now being bragged about by the CCRC.
Indeed, the CCRC rejected two previous applications and has never previously undertaken a thorough investigation into the case. The CCRC’s stance for many years was that Mr. Malkinson was guilty despite numerous indications outlined immediately below that he was likely to be innocent. What should have alerted CCRC staff immediately to the possibility of a miscarriage of justice was that Malkinson was convicted almost entirely on identification evidence that was a very bad ‘fit’ for him.
What the CCRC knew many years ago and ignored in refusing Malkinson’s submissions
On 8 March 2004, less than a month after the trial finished, the forensic scientist on whose work the prosecution case relied wrote to the judicial authorities to reveal some shocking information:
“A problem has recently emerged… As such, the previously reported results in relation to the possible presence of condom lubricants are now regarded as unreliable”.
However, the seemingly honest admission was cynically designed to cover up what had happened. Note the wording: ‘a problem has ‘recently’ emerged… the results are now’ regarded’.
What the judiciary were not informed of was that the scientific community and the Crown Prosecution Service (CPS) knew that these tests were unreliable months before the case went to trial.
On 17 October 2003, fifteen weeks prior to the start of the trial, the Forensic Science Service (FSS) circulated an internal memo saying:
‘We have withdrawn use of this test from casework.’
Furthermore, they said:
‘We have informed all FSS staff, the CPS and other suppliers of forensic science services in the UK of the issue.’
The problem was that the swabs being used in the testing contained traces of the substances that were being tested for. So the tests were absolutely invalid.
Even as they made the argument that the rapist was ‘forensically aware’ at the trial, the CPS knew that it was untrue. If they were not being untruthful, they were being completely negligent.
However, the deception does not even stop there. Refer back to the scientist’s letter where he refers to ‘the possible presence of condom lubricants’.
This wasn’t what the jury were told. The judge emphatically said, quoting the scientist’s evidence, that traces ‘were found.’ There was no qualification; the evidence hadn’t been phrased in terms of mere possibility. Was the judge was misleading the jury in his summing-up, or the forensic science evidence was exaggerated deliberately?
Perhaps the most remarkable aspect of the entire case, but is not actually so unusual, was that the scientist who had misled everyone and who was continuing to misinform the authorities, was then tasked with conducting further tests on the exhibits!
His new tests now claimed to show that there were traces of condom lubricants on the woman’s knickers. It was on the basis of this fresh evidence that Malkinson’s appeal was dismissed.
However, these new tests were themselves redundant. The original tests had included tests on the knickers. That being the case, the fact that different swabs were now being used was irrelevant. The exhibits were already contaminated and that was that.
However, the appeal court judges were not told about that. Nor were they told about an additional matter of substantial significance. The knickers were torn apart down one side. The scientists who examined them described them as ‘unwearable’. The complainant told police that, when she recovered from the ordeal and gained consciousness, ‘my knickers were pulled right down and were attached to my right ankle’. The police officer who took them from her recorded in her notebook: ‘[Prestwood] handed me a pair of briefs which she produced from the right pocket of her fleece’.
Because the facts were withheld from them, the judges assumed that after the assault Prestwood, attempting to compose herself, replaced all her clothing; and that was how the supposed condom lubricants from the attack came to be transferred to the knickers. But that is not what had happened.
The judge referred to Mr Malkinson as being ‘forensically aware’ as a way of explaining why there was no forensic evidence that he had carried out the rape. There are two respects in which the ‘forensic awareness’ argument does not hold water. Firstly, the woman said that the attacker removed his shirt during the assault. It was an unusually hot night (one witness referred to the man as ‘sweating profusely’), so a ‘forensically aware’ assailant would not have done that, for fear that he leave traces of himself on his victim.
Secondly, there was the partial severing of the victims left nipple. This was used at trial to escalate the seriousness of the attack; it was suggested that the attacker could have bitten the woman. Again, the jury was being seriously misled because that is precisely what a ‘forensically aware’ attacker would have avoided; such an action could well have left incriminating forensic evidence in the form of either teeth-marks or, far worse, saliva deposits from which a DNA profile could be obtained.
None of this should disguise the fact that other evidence that might have been anticipated was missing. The woman had ‘superficial scrapes of the skin [which] resembled scratches from vegetation’, as well as bloodstained hands, which could be accounted for by having tumbled down a brambly bank. There were no marks of this kind on Malkinson’s body. Further, the victim had suffered cuts and bleeding as a result of the tumble; so one would have thought it possible that the attacker would also have suffered bleeding, and as a result that some of his blood would be left on her. Again, there was nothing.
There was also identification evidence. A man stalking the victim at 4.30 am in the morning, if there was such a man, was also seen, apparently, by a couple driving around. Two weeks later, Greater Manchester Police conducted a video identification parade at 1.00 am on a Sunday morning. The woman from the car (who said that the man she saw was ‘sweating profusely’) and Prestwood were picked up and taken to the police station together in the same police vehicle.
The outcome of the video identification was that the victim, Prestwood, identified Malkinson; the other woman identified someone else.
The duty solicitor from Burton Copeland, who were representing Malkinson at this time, wrote a memo expressing his concerns about the propriety of the procedure – was it normal to hold a video parade at that time of the morning? – and the identification that resulted from it.
Superficially, the fact that the complainant positively identified Malkinson may have appeared compelling evidence. However, her evidence was diminished, if not undermined entirely, by the fact that in six key respects, Malkinson did not fit the description she’d already given of her attacker.
First of all, there was the height. Prestwood was specific about this (‘5’8” at the most – two inches taller than me’); but Malkinson was significantly taller, 5’11”. Secondly, the attacker removed his shirt and the witnesses said that his torso was hairless; but Malkinson was covered with chest hair. Thirdly, she said the attacker had an accent that was ‘local to Bolton’. Later on, prosecution witnesses tried to modify this, but the stark fact was that she’d mentioned a local accent; and Malkinson did not have one. He was from Grimsby and had never been to the area before, let alone been brought up there.
Fourthly, the attacker removed his shirt. Malkinson had very prominent tattoos (acquired on his overseas travels) running down each forearm, but Prestwood saw no tattoos on her attacker.
Fifthly, she was adamant that she caused ‘a deep scratch’ to the man’s face. Malkinson was seen at work immediately after this incident – by police officers among others – and his face was not scratched.
Sixthly, there was the clothing. The witnesses were agreed that the man was wearing ‘smart’ black trousers, ‘smart’ black shoes and a ‘very smart’ shirt. Malkinson did not possess, and had never possessed, clothing of that kind.
In fact, the prosecution could offer no explanation as to how the impoverished Malkinson might have acquired smart clothing. It was a significant evidential point that the CPS should not have been allowed simply to gloss over.
Then, with the trial about to start, a further “identification” emerged. This was from the woman in the car, who had picked out a parade stooge. Now her evidence had changed. She hadn’t picked out a parade stooge; she’d picked out Malkinson!
When had this change in her evidence occurred? The woman said she changed her evidence when she returned to the witness room (where Prestwood was). However, the officer accompanying her had a different story. He said that she’d changed her evidence in the corridor ‘more or less immediately’ after leaving the video suite.
The jurors were commendably alert to the puzzling aspects of this evidence and as a result asked to see this woman’s statement. They were not allowed to see it, but this wasn’t the point. The point was that, because of the jurors’ request, the prosecution had to admit that no such statement existed. The woman hadn’t made a statement about this change in her evidence.
Nor was it mentioned in the officer’s notebook. Strangely, there was no reference to it there either!
In fact, there is just one document that mentions this second identification and that is a sketchily filled-in form that appears as page 45 in the prosecution bundle. However – there is already a page 45 in the prosecution bundle.
So, it appears likely that single document was put together later, backdated, and then inserted into the prosecution bundle.
What probably occurred? With the trial fast approaching, the prosecution were alerted to the fact that there was no forensic science evidence at all. The only evidence they did have – the complainant’s identification – could be destroyed in court by any competent defence barrister. Alarm bells would have rung. The other two identifications just kind of happened.
Greater Manchester Police made a three-part documentary series with the BBC, Eyewitness, in which they highlighted the dangers of identification evidence and explained that they had refined their techniques for interviewing witnesses about identifications. ‘Greater Manchester Police are among the most modern practitioners of interviewing techniques anywhere in the world’, an officer claimed. ’It’s something we can be rightly proud of.’ So it was massively hypocritical of Greater Manchester Police to have tendered this identification evidence at trial because none of it met what they claimed were their own standards.
The defence case was straightforward. That evening, Malkinson had a good night’s sleep and turned up for work at 8.00 the next morning, well-rested and with his face unscratched.
At trial, the judge’s performance was simply unsatisfactory and incompetent. With reference to the supposed scratch on the attacker’s face, he said this in his summing-up:
She believed, undoubtedly, believed, that she scratched his face… Did she succeed in scratching his face in the way she clearly believed she did? The complainant never said that she believed she’d scratched his face. She was adamant; she had scratched his face. ‘I have caused a deep scratch’, she said at one point.
So the judge was artfully reshaping her testimony so that it made the prosecution case more credible.
In the intervening years and during two previous submissions, the CCRC was aware of all the issues with the case outlined above; they supposedly examined the case and were unable to find anything that raised doubts about the safety of the conviction.
However, as with all other cases, the only people with access to all the necessary case documentation and exhibits were the CCRC and as we know from other cases, they don’t investigate anything, they merely read through documents.
Breakthrough
In April 2021 the charity organisation assisting Mr Malkinson, APPEAL, commissioned new DNA testing, which revealed the presence of unknown male DNA in samples taken from the victim and her clothing.
Worryingly, 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. We would like to thank all those who have supported our charity’s work, including barristers Max Hardy and Edward Henry KC, and pro bono lawyers at Ropes & Gray, Latham & Watkins and Mishcon de Reya. 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.”
Andrew Malkinson said:
“I am innocent. Finally, I have the chance to prove it thanks to the perseverance of my legal team at APPEAL. I only have one life and so far 20 years of it has been stolen from me. Yesterday I turned 57 years old. How much longer will it take?” Mr Malkinson also said: “My life is on hold until I can overturn the conviction. I can’t get a decent job. I’m having to scrape by on the scraps of minimum wage jobs that nobody really wants.”
According to his lawyer, Malkinson’s freedom will be limited while he remains convicted. “Andy is finally breathing free air. But any minute now we’re going to go back to the hostel, where he has to check in every day at a particular time for the foreseeable future. We’re going to separate him from his mother again. He’s going to go into the hostel, and she’s going to go home and spend Christmas without him. He’s obviously on the sex offenders’ register, and his daily life is going to be very closely monitored by the probation service.”
So, what of Helen’s Pitcher’s grandiose claims for the CCRC?
It is obvious that without the hundreds of hours spent by the charity APPEAL Andrew Malkinson’s case would never have been referred by the CCRC, because they were not looking for any DNA evidence after 2009.
But, if a charity with minimal resources can achieve a forensic breakthrough, what was stopping the CCRC? Attitude and determination, put simply.
What now about the CCRC staff who failed for years to investigate the case? Instead of Helen Pitcher bragging about what the CCRC have allegedly achieved, she should be requiring the Chief Executive Karen Kneller to instigate a thorough disciplinary investigation of every Case Review Manager and/or Commissioner who failed to investigate the two previous submissions properly. After 2009 the CCRC simply gave up on Andrew Malkinson, costing him 13 years of his life when he could have been freed from the stress of being wrongly convicted. Years in which he could have found better-paid work and moved on with his life.
In any properly managed organisation staff who oversaw such a fiasco as that revealed here would either resign or be sacked. Is that likely to happen with Helen Pitcher as Chairman of the CCRC?
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.
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