Chris Henley KC's review of the Criminal Cases Review Commission's (CCRC) handling of the Andrew Malkinson case has been well received by critics of the CCRC, and even by Mr Malkinson himself and Appeal, the organisation that assisted him to overturn his wrongful conviction. Since its publication, snippets from the review by Mr Henley have been cut and pasted and shared on social media platforms, which are widely seen as damming criticisms of the CCRC, by alleged innocent victims of wrongful convictions and their supporters who say that they, like Mr Malkinson, are also innocent victims who have been let down by the CCRC.
I can understand why Mr Henley's review has been so enthusiastically and warmly received. Any apparent criticism of the CCRC's failures will likely be welcomed by those who, themselves, claim to be innocent victims of wrongful convictions and by the families and friends of alleged innocent victims of wrongful convictions who are desperate for justice but have had the applications in their cases rejected by the CCRC, not because the CCRC has proven that their claims of innocence are untrue but, rather, because, like Mr Malkinson's first and second applications, they were deemed to not fulfil the so called real possibility test. The challenge for applicants to the CCRC is that the real possibility test requires that the CCRC can only refer convictions back to the Court of Appeal (Criminal Division) if it is deemed that the case has fresh evidence and if it were to be referred there is a real possibility that the conviction will not be upheld, i.e. quashed (s.13, Criminal Appeal Act 1995).
But, looks can be deceiving, and we can see the world how we want it to be rather than it is. As such, reading selected quotations from the Henley review that are taken out of context through desperate and hopeful spectacles on X (formerly Twitter), Facebook or in mainstream newspapers can give an incorrect and misleading impression. It might seem like the review by Mr Henley represents a damning criticism of the CCRC when the the overall thrust of the review is both disappointing and, ultimately, harmful if viewed from the perspective of alleged innocent applicants to the CCRC struggling for truth and justice.
It is disappointing because it represents a missed opportunity to highlight how the real possibility test can, and does, fail innocent applicants like Mr Malkinson. This is why it is harmful, too, because it fails, entirely, to acknowledge a wealth of existing literature and a host of previous parliamentary and Ministry of Justice reviews that are critical of the CCRC's real possibility test and which supports longstanding calls for the reform of the real possibility test so that the CCRC is better placed to assist innocent victims of wrongful convictions. Against this, Mr Henley's review sees nothing wrong with the CCRC's real possibility test as it relates to the CCRC's handling of the case of Mr Malkinson. Rather, he fully endorses the real possibility test as the appropriate test for the CCRC and sees the problem as a failure of the case reviewers in the case of Mr Malkinson to appropriately understand the real possibility test and applying it correctly!
The remainder of this response to the review by Mr Henley considers it in terms of the following key issues:
Is the Henley review independent?;
How meaningful is the Henley review?;
The Henley review and its support of the CCRC's real possibility test;
The Henley review's criticisms of the CCRC's case review of Mr Malkinson's first application; and,
Recommendations.
It is concluded that Mr Henley's review works counter to the prevailing consensus in forms of counter discourse, which sees the CCRC's real possibility test as the single most significant cause of innocent applicants being rejected by the CCRC. From this standpoint, it is argued that Mr Henley's review is best seen as a partisan trojan horse damage limitation defence of the CCRC's real possibility test in response to the damage caused by the fallout of the failures of the CCRC in the case of Mr Malkinson.
Is the Henley review independent?
The first issue to consider is the claimed independence of the Henley review. The Oxford English Dictionary defines 'independent' as 'not connected with or influenced by something; not connected with each other.' Mr Henley's review is claimed to be independent, yet its terms of reference were decided by the CCRC (see page 6 and page 10), it was paid to conduct his review by the CCRC (page 6), and Mr Henley was instructed to provide his report to the CCRC (page 7). Is not the CCRC, then, not better seen as Mr Henley's 'client' for whom he worked under its instruction, undermining his, and its, claim of independence?
Further questions follow, why was the review claimed to be independent when there is a clear connection between the CCRC and Mr Henley and the CCRC influence the review by setting its parameters; its terms of reference? Was it, perhaps, to give the illusion that Mr Henley was genuinely free to review the CCRC's handling of the Mr Malkinson case as he, himself, decided? Was it to try to give the review an authority or status in terms of objectivity and neutrality that isn't warranted? Was it to disguise or distract from the reality that it was an 'inside job', in the sense that Mr Henley was not as independent from his paymasters as is claimed or how the CCRC or Mr Henley would want readers to believe?
How meaningful is the Henley review?
The reality that the CCRC's real possibility test can, and does, fail innocent victims of wrongful convictions has been at the centre of a host or parliamentary inquiries and Ministry of Justice reviews over the last decade, the success of which prompted the Government to set up the current inquiry into the CCRC by The Law Commission of England and Wales's (see Chapter 5). This followed: The inquiry by The Westminster Commission on Miscarriages of Justice's into the CCRC in 2021, which recommended that the real possibility test needs to be redrafted (see page 67); The Ministry of Justice's Tailored Review of the CCCRC in 2017; The Report of the Justice Committee's inquiry on the CCRC in 2015 (see page 8); and, The Ministry of Justice's Triennial Review of the CCRC in 2013 (see page 9).
There is also an extensive body of literature over the last 20 years that also emphasises how the real possibility test can fail innocent applicants (see here, here, here, here, and here, for example).
On top of this, at the cultural or civil society level, the innocence projects that were established in British universities under the auspices of Innocence Network UK (INUK), the organisation Appeal (formerly The Centre for Criminal Appeals) and Empowering the Innocent (ETI), as well as several other anti-wrongful conviction innocence-orientated organisations and initiatives, have all been established over the last 20 years precisely because innocent victims can be wrongly convicted and imprisoned in the UK and the way that the CCRC is structured and operates in response to the requirements of the real possibility test means that those wrongful convictions may not be corrected. As such, innocent victims of wrongful conviction, like Mr Malkinson, can be, and are, languishing in prison who need help to raise awareness of their struggles for justice, to make applications to the CCRC, to overturn their convictions in the Court of Appeal (Criminal Division) (CACD), achieve their freedom and clear their names.
Despite all of this, as per his instructions, Mr Henley's review was restricted to the CCRC's handling of Mr Malkinson's applications. The one exception was a comparative analysis with the case of Victor Nealon (pages 72-106), another innocent victim of wrongful conviction and imprisonment for an alleged sexual offence that he did not commit. A case with remarkable similarities with the case of Mr Malkinson, Mr Nealon also spent 17 years in prison, which was 10 years longer than his tariff of 7 years because he maintained innocence from the start. And, Mr Nealon also had two applications rejected by the CCRC before his lawyer, Mark Newby, like the organisation Appeal in the Mr Malkinson case, submitted DNA evidence that exonerated him in his third application, which forced the CCRC to refer his wrongful conviction back to the Court of Appeal where it was quashed.
Other than its engagement with the case of Mr Nealon, however, Mr Henley's review failed, entirely, to contextualise the CCRC's handing of Mr Malkinson's case within the wider counter discourse on the failings of the CCRC and the ongoing struggle for the CCRC's real possibility test to be reformed so that it is better placed to assist innocent victims of wrongful convictions. No mention at all was made of other high profile cases of claims of innocence by alleged victims of wrongful convictions that appear frequently in the public discourse of mainstream and alternative media, many of which have also had multiple applications to the CCRC rejected because they are deemed to not satisfy the real possibility test.
This includes the case of Clive Freeman, currently in his 36th year on imprisonment, 23 years over the 13 year tariff given by the Court. The CCRC is currently reviewing Mr Freeman's 5th application for a conviction for an alleged murder in a case where it is most likely that no crime occurred at all and that the so called 'victim', Mr Hardie, died of natural causes (to read more on the Clive Freeman case click here, here, here, and here).
It includes the case of Robin Garbutt who has spent the last 13 year in prison maintaining his innocence for the murder of his wife, Diana Garbutt. Mr Garbutt will shortly submit his 4th application to the CCRC in a case that, to my mind, should be included with the cases of the Post Office Scandal, which saw many hundreds wrongly convicted. Indeed, the main evidence against Mr Garbutt was the opinion of a Post Office Horizon expert witness who supported the prosecution claim at trial that the motive that he murdered his wife was to cover up his thefts from the accounts of the post office that he ran with his wife. Yet, Mr and Mrs Garbutt had also complained about the Horizon system giving incorrect readings, like the victims at the centre of the Post Office Scandal (click here, here, here, here, here and here to read more on the Robin Garbutt case).
It includes the case of Jeremy Bamber, convicted and given a whole life sentence for the 1985 White House Farm murders of his adoptive parents, Nevill and June Bamber, his adoptive sister, Sheila Caffell, and his sister's six-year-old twin sons, a case in which every aspect of the prosecution case against Mr Bamber has been undermined or discredited (to read more on the Jeremy Bamber case click here, here, here and here).
On top of these cases which have had applications rejected by the CCRC but continue to maintain their innocence, additional cases that that have featured on CCRC Watch and other mainstream media sources include Ray Gilbert, Mark Osborne, Walid Habib, Ben Geen, Sean Bw Parker, John Bartlett (see here and here), Brendan McConville, Richard Keedwell, Babatunde Olagunju, Paul Gover, Terry Smith. These cases, and others, also attest to the CCRC failing to investigate claims of innocence by alleged victims of wrongful convictions due to the restrictive nature of the real possibility test under a blanket rejection - 'the evidence in your application was or could have been dealt with in your trial.'
It is from this standpoint that Mr Henley's review can be conceptualised as meaningless in the sense that it says nothing about the increasing number of cases with plausible claims of innocence that have been rejected by the CCRC on the basis that they rejected Mr Malkinson's first and second applications - they were told that they didn't satisfy the real possibility test.
Having said this, I do recognise that from an alternative perspective Mr Henley's review might be considered to be extremely meaningful indeed. In neglecting the growing number of applicants who have been rejected by the CCRC but who continue to maintain their innocence and to make multiple applications, The review by Mr Henley might be exactly what the CCRC wanted when Mr Henley was instructed to conduct the review.
The Henley review and its support of the CCRC's real possibility test
A critically evaluation of how Mr Henley's review relates to the CCRC's real possibility test suggests a possible reason why, out of all of the possible cases that could have been utilised, it was the case of Mr Nealon that was chosen for his comparison with the CCRC's handling of Mr Malkinson's case. Was the case of Mr Nealon purposely selected because it could be used to give support to what Mr Henley wanted to say in support of the CCRC's real possibility test in the face of mounting criticism and concerns about it? Was the selection of the case of Mr Nealon another indicator that Mr Henley's review can be conceptualised as part of a damage limitation exercise in response to the fallout that was caused by the case of Mr Malkinson?
As already indicated, despite the burgeoning counter discourse against the real possibility test, Parliamentary inquiries, Ministry of Justice reviews and the sitting Law Commission for England and Wales' review of the CCRC, which all have a profound understanding of the pernicious nature of the real possibility test in terms of how it can mean that innocent victims of wrongful convictions can have their applications rejected by the CCRC, Mr Henley's review was not only silent on this most crucial issue, his review works counter to it in arguing, instead, that the CCRC's real possibility test was not the problem in the case of Mr Malkinson at all.
Rather, for Mr Henley, the problem in the CCRC's handling of Mr Malkinson's case was the failure of the Case Review Managers, Commissioners and others at the CCRC who worked on the review of Mr Malkinson's first application to appropriately understand the real possibility test in terms of how it relates to the case of Mr Nealon and apply it to the case of Mr Malkinson correctly (paragraph 93). As he said:
'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 Henley, paragraph 88).
Providing even further support for the real possibility test as an appropriate test for determining CCRC referrals, Mr Henley was unequivocal in his affirmation of the real possibility test in his recommendations section:
'...training... [needs to be]...be provided to all CCRC staff to ensure that the test that should be applied to cases, particularly involving DNA evidence, is properly understood. The statutory test is that the ‘Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made (section 13(1)(a) Criminal Appeal Act 1995) – ‘the real possibility test’ (point d, page 110).
Mr Henley had the benefit of hindsight and knew that Mr Malkinson was an innocent victim of wrongful conviction and imprisonment and that the rejection by the CCRC of his second application extended his wrongful imprisonment.
Yet, he commended the quality of work undertaken in the review of Mr Malkinson's second application and agreed with the CCRC's decision not to refer his conviction back to the Court of Appeal (Criminal Division) because he didn't think that there was anything 'sufficiently substantial to lead to the conviction being regarded as unsafe, on these grounds' (paragraph 104). In his own words, Mr Henley said:
'I have read through all the documentation relating to this application held by the CCRC. There is a huge difference in quality compared to the first application. I am satisfied that the quality of work carried out in relation to this application was of a high standard. The Case Record entries are clear, coherent and show that the members of the CCRC who dealt with this application approached their consideration of it with care, thoroughness and importantly with an open mind. This does not mean that the CCRC agreed with the submissions made on Mr Malkinson’s behalf; the final decision reached was not to refer the case to the Court of Appeal on any of the grounds set out in Appeal’s application. I agree with the CCRC’s analysis of each of the matters raised by Appeal. Some clearly amounted to breaches of Code D others did not, but none of the breaches, either on their own or together, were sufficiently substantial to lead to the conviction being regarded as unsafe, on these grounds' (paragraph, 104).
Mr Henley's commitment to, and support of, the real possibility test couldn't made any clearer than in his full agreement with the CCRC's rejection of Mr Malkinson's second application, which was the first to be submitted by the organisation Appeal. Focused entirely on alleged breaches of PACE Code D in relation to how the identification evidence was obtained, and particularly the circumstances in which the parades were conducted and how the witnesses were managed (paragraph 103), neither the CCRC nor Mr Henley saw any merit in the submission.
This was despite the fact that the alleged complainant at the centre of the false allegation and wrongful conviction and imprisonment of Mr Malkinson told the police that she 'had caused a deep scratch to the man’s face’ (paragraph 35) and that he did not have any such scratch on his face the day after when he was first seen by the police.
Mr Henley's support of the CCRC's rejection of Mr Malkinson's second application, even though he knew when he was saying it that Mr Malkinson was innocent, epitomises a major problem with how the real possibility test structures CCRC reviews that can see the applications of innocent victims of wrongful convictions rejected with those involved in the case review process not realising that they have done anything wrong.
As I have argued elsewhere, it is the inability of criminal appeal lawyers to put innocent, or possibly innocent, people before the law that represents to greatest hurdle to justice for innocent victims of wrongful convictions, which also applies to Mr Henley's review and to case workers at the CCRC, too.
Mr Henley's agreement with the CCRC's rejection of his second application chimes with a conversation with an academic lawyer colleague some years ago. I had written an article to highlight, precisely, how CRMs and Commissioners at the CCRC can apply the real possibility test and reject innocent applicants and not realise that they had done anything wrong. I remember him referring to such a situation as 'the rightful conviction of the innocent', as opposed to the wrongful conviction of the innocent, to denote that the procedures had been followed correctly and so the outcome was satisfactory according to law.
I recall replying that there can be no such thing as 'the rightful conviction of the innocent' as the conviction of an innocent is always wrongful. I said that the Royal Commission on Criminal Justice (RCCJ) was established on the day that the Birmingham Six overturned their wrongful convictions and that combined with the case of the Guildford Four, and other high profile cases at the time, it caused a widespread crisis of confidence in the entire criminal justice system when the British public found out that innocent victims had been convicted for IRA bombings that they didn't commit. I said that the CCRC was set up to resolve that public crisis of confidence and that if enough members of the population found out that it was failing innocent victims of wrongful convictions that it would either have to be reformed or replaced with new post-appeal body that could assist the wrongly convicted innocent in ways that the CCRC is currently failing to do. This remains my stance and is the reason that I do the work I do.
I also remember him being pleased with himself for being so clever in constructing a new concept and saying to me that academic lawyers are cleverer than sociologists, like me, who would never think of such a concept because they are too focused on the moral dimension of the wrongful conviction of the innocent at the expense of recognising that the law had actually been followed correctly. I didn't respond any further to him at the time, but I would say to him now that I have no problem with being seen as a sociologist in the terms outlined as opposed to a clever academic lawyer, practicing lawyer or member of a case working team at the CCRC who would even have the audacity to try to justify the wrongful conviction and imprisonment of an innocent victim in such terms.
The Henley review's criticisms of the CCRC's case review of Mr Malkinson's first application
I have restricted this section to Mr Henley's review of the CCRC case review of Mr Malkinson's first application on the grounds that he agreed with the CCRC's rejection of the second application and there is little criticism, if any, about the third application that was referred back to the Court of Appeal (Criminal division) that relates to the case review.
Moreover, it is when commenting on the work conducted by the various members of the case review team that rejected Mr Malkinson's first application that Mr Henley's review is at its most critical, and from where in his report that most of the quotes that have been circulated on social media and in the mainstream media have been culled from.
The following are a sample of criticisms in Mr Henley's report of the quality of the work of the case review team:
'The tone of this first narrative entry...[P1]...the author having only had an initial read through of the Court of Appeal papers from 2006, which provide only very basic summary detail...and the applicant’s submissions, is one of heavy scepticism' (paragraph 39 my emphases).
'The question that should have been in P2’s mind was what might have been the outcome of the trial if the jury had been told about the new DNA results that appeared to exculpate Mr Malkinson' (paragraph 50 my emphasis).
'Nevertheless, P2 should have been perfectly able to understand the importance of this new DNA result, coupled with the elimination tests' (paragraph 52 my emphasis).
'I have read through P2’s ‘Review of the DNA Results inc. Op Cube’. It doesn’t get to grips with the issue...and there is little if any analysis of the implications of the new results' (paragraph 53 my emphases).
'The 2008 results excluded Mr Malkinson as a contributor to the mixed profile, so the 2003 results had been completely superseded. It is not clear from the entry whether P2 understood this' (paragraph 53 my emphases).
'P2’s work lacked purpose and had been drifting for many months, with no indication that this was causing concern; but for that person leaving the organisation there appeared to be no plan in place to intervene' (paragraph 56 my emphasis).
'The Case Record shows that P4, notified...that he had recently taken over conduct of the case. P4’s first entry...reflected the lacklustre and unfocused work of P2 (paragraph' 60 my emphasis).
'P4 should have sought the assistance of P3...[the Group Leader]...referred the issue to the relevant Commissioner for their input, and/or engaged an independent scientific expert to ensure that this issue was properly understood. There is still no indication that P4 understands...the new DNA result from this area of staining is potentially of huge significance (paragraph 71 my emphases).
The performance of P2 and P4 was very poor, and there appears to have been no effective supervision or direction of their work, particularly with P2. P2 allowed the case to drift with no sense of purpose or progress for more than a year and P4 reached firm conclusions far too quickly, without considering the material he should have taken the time to read through. He also plainly did not understand the significance of the new DNA evidence (paragraph 92 my emphases).
'P4 the second CRM reached his firm views without reading very much of what the CCRC had received so it is unsurprising that the importance of reviewing the police file didn’t occur to him' (paragraph 100 my emphasis).
It is little wonder that such criticisms were well received by the anti-wrongful conviction or innocence community. Indeed, what Mr Henley describes is commonplace in the counter discourses of alleged innocent victims of wrongful conviction who have been rejected by the CCRC because they are not deemed to fulfil the real possibility test and not something to be seen as only relating to the CCRC's handling of Mr Malkinson's first application. Alleged innocent victims and their families and supporters would likely receive Mr Henley's criticisms of the case review in Mr Malkinson's first application as validating their own experiences and providing hope that such failings might be remedied and not feature in any future applications that they might make.
Mr Henley's criticisms of the case review of Mr Malkinson's first application must also be understood from the vantage point that he knew that Mr Malkinson had already had his conviction overturned on the new DNA evidence. In this sense, Mr Henley's review was working backwards from that standpoint, paying particular attention to the failures to get to grips with the possibility of new DNA evidence to overcome the real possibility test and warrant a referral back to the Court of Appeal (Criminal Division). It is akin to a review of what might have been done to avert any undesirable occurrence after the fact when it is known what when wrong and why. An example could be a review of what might have been done to prevent The Titanic from sinking when it was known why it sank. This, again, speaks to the question of the value or meaningfulness of Mr Henley's review and its purpose given that Mr Henley's review could not capture the likely wider extent of the working practices that he reviewed because it was focused so narrowly on the case of Mr Malkinson.
Perhaps most crucially, however, Mr Henley framed his overall criticisms of the case review of Mr Malkinson's first application from the start of his review in terms of his general support of the CCRC's real possibility test, again emphasising that the case workers should have been more focused on his interpretation of the real possibility test and whether the jury at trial might have decided differently had they heard about the new DNA evidence. This is reiterated in variously places in Mr Henley's review as in the following example:
'All involved...[in Mr Malkinson's first application]...failed correctly to apply the test for referring a case. The test is whether the jury might have decided differently if they had heard evidence that an unknown male’s DNA had been located...on the vest top' (paragraph 93 my emphasis).
Another example is:
'I have found that there was too little engagement and focus on whether the jury might have reached a different decision if the new evidence had been available and presented at the time of the trial' (paragraph 132 my emphasis).
Overall for Mr Henley:
'The CCRC’s core mission and statutory purpose is to refer cases where new evidence comes to light which might have made a difference to the jury’s verdict, and therefore the verdict can no longer be regarded as safe. This is also the test the Court of Appeal applies (paragraph 132 my emphasis).
This is another rather obvious point to make in a retrospective review when a conviction has been overturned and the CCRC applicant has been found to be innocent: The case reviewers could have, or should have, known this or that earlier, or done this or that earlier, and so on.
But, the reality of CCRC case reviews in my experience is that the emphasis is always on whether there is there fresh evidence that wasn't available at the time of the original trial or at a previous appeal before moving to the next stage of the review to determine whether the fresh evidence has a real possibility of overturning the conviction if a referral is made. In this sense,
Crucially, Mr Henley conflates the two distinct stages of the real possibility test to criticise case reviewers for not doing something that they don't normally do. The two distinct stages of the real possibility test can be presented as follows:
Stage 1: Is there fresh evidence such that the Court of Appeal (Criminal Division) will receive the appeal if the case were referred; and,
Stage 2: Is there a real possibility that the fresh evidence might render the conviction unsafe if the case is referred.
This fits entirely with Lord Bingham's clarification of the requirement for fresh evidence at the heart of the real possibility test in the case of Pearson, R (on the application of) v. Criminal Cases Review Commission, [2000] 1 Cr. App. R. 141:
'The Commission has, in effect, to predict how the Court of Appeal is likely to answer the question which arises under section 23...[of the Criminal Appeal Act 1968...In a conviction case depending on the reception of fresh evidence, the Commission must ask itself a double question: do we consider that if the reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? if so, do we consider that there is a real possibility that the Court of Appeal will not uphold the conviction? The Commission would not in such a case refer unless it gave an affirmative answer to both question (paragraph 18).
As such, although I am critical of the real possibility test, I can see that it makes logical sense that the CCRC is primarily interested in fresh evidence as it cannot even ask the question about whether the Court of Appeal (Criminal Division) would overturn the conviction if it doesn't first have the fresh evidence that would render the referral admissible to the Court of Appeal (Criminal Division) should a referral be made.
Further, in reviewing only a single case, and a case that he knew was innocent at that, Mr Henley's review is not representative of CCRC reviews, the majority of which according to the statistics are rejected because they are not deemed to meet Stage 1 of the real possibility test, i.e. they are not deemed to fulfil the first part, the fresh evidence part, of the real possibility test. Indeed, to May 2024, the CCRC has rejected 97.4% of its applications, or 31,035 applications out of a total of 31,879.
In this context, I would conceptualise the CCRC and its case working method as a rejection machine that has created a rejection culture with only relatively rare applications making it to State 2, which require the kind of thinking that Mr Henley criticised an absence of in terms of whether the jury might decide different, and so on.
It is in this context that Mr Henley's criticisms of the case reviewers in Mr Malkinson's first application need to be understood. As I argued in a recent article about the CCRC, if the evidence doesn't fit the theory, you have to consider changing the theory. The theory that the CCRC is a post-appeal body to assist innocent victims of wrongful convictions to overturn their convictions is not supported by the evidence. On the contrary, the evidence of over 25 years of the CCRC dealing with applications from alleged innocent victims of wrongful convictions supports the alternative theory that the CCRC was created to prevent wrongful convictions from coming to public attention and causing the kind of crisis of confidence in the criminal justice system that was caused by the Guildford Four, the Birmingham Six, and so on.
The relates to the Post Office cases, which are currently causing a similar widespread diminishment of trust and confidence in the criminal justice system, dozens of whom, by the way, were rejected when they made applications to the CCRC.
It also relates to the case at the centre of the review by Mr Henley: The case of Mr Malkinson, which is causing shock waves across the entire criminal justice system including Greater Manchester Police (GMP), Crown Prosecution Service (CPS), Court of Appeal (Criminal Division), the jury system, all of which failed an entirely innocent man who was falsely accused, wrongly convicted and imprisoned, spent 10 years longer in prison than his tariff because his would not admit to an alleged rape that he did not commit, and the CCRC who rejected him twice. On top of this, the person who conducted the review agreed with the CCRC's rejection of his second application despite knowing that he was innocent when he was agreeing with it.
Put simply, is not Mr Henley trying to defend the indefensible? And, whatever Mr Henley's review or the CCRC might want to project, we shouldn't lose sight of the fact that it was the real possibility test was the reason for the rejection of Mr Nealon's first and second applications; it was the reason that the CCRC's rejected the applications of the innocent Post Office sub-postmasters and mistresses, which the Government is creating new landmark legislation to overturn to bypass the CCRC; and, it was also the reason for the rejection of Mr Malkinson's first and second application.
Recommendations
Perhaps not surprisingly, the main thrust of Mr Henley's recommendations related to DNA evidence, which was the main reason Mr Malkinson's conviction was overturned.
His first recommendation was:
'That all cases with the possibility of new DNA opportunities should be looked at again in the light of the experience of the Malkinson case' (point a, page 109).
His second recommendation was that:
'The CCRC should compile, for independent scrutiny, a list of all the cases that were identified as part of the internal review process following the Nealon case setting out in sufficient detail the further investigative steps taken and decisions made in relation to these case' (point b, page 110).
His third recommendation said that:
'...all CCRC staff should be provided, annually, with comprehensive training on how to interpret DNA evidence, including partial profiles, and limited DNA components in the context of other results' (point c, page 110).
I do not disagree with these recommendations, but they are not matters that were not known about prior to Mr Henley's review. The CCRC was alerted to it's failings in understanding and utilising developments in DNA testing almost 15 years ago in an application from the University of Bristol Innocence Project (UoBIP) that proposed that the biological samples obtained from the deceased victim and the crime scene be re-tested utilising a relatively recent DNA testing technique which had been extremely successful in securing the exoneration of appellants in similar cases in the United States. It was proposed that if the samples were subjected to this new testing technique, it may be able to show that the alleged innocent victim of wrongful conviction may, in fact, be innocent or, alternatively, may have an association with the murder that he was convicted of and which he has always denied any involvement with at all. The response from the Case Review Manager (CRM) dealing with the case was one of surprise by the submission on the grounds that as the DNA evidence that was found at the murder scene was not part of the evidence that led to the conviction and, therefore, he was unclear of its relevance to his review of the case. More specifically, the CRM stated:
‘Perhaps…[the name of the UoBIP student caseworker]…could assist in explaining how this [submission] is…relevant to [the applicant’s] case and how it could undermine the safety of the conviction? I am mindful that no DNA was found that related to [the applicant] and absence of DNA linking [the applicant] to the offence was a point put by the Defence to the jury.'
Mr Henley's fourth recommendation was that:
'...training be provided to all CCRC staff to ensure that the test that should be applied to cases, particularly involving DNA evidence, is properly understood...‘the real possibility test’. When considering new evidence, the real possibility test should not be interpreted to mean anything other than the jury might have decided differently if they had known about the new evidence at the time of the trial' (point d, page 110).
As has been much highlighted in this response, contrary to the the reviews into the workings over the last 10 years and the increasing literature on the failings of the CCRC in dealing with applications from alleged innocent victims, which has highlighted the real possibility test as a particular issue of concern, Mr Henley sees his interpretation as the solution to the p[problems with the CCRC. As much as anything else, this raises questions about the aim of Mr Henley's review, which made no reference to, nor engagement with, the existing critiques of the real possibility test.
Mr Hanley's seventh recommendation was that:
'...the CCRC should always aim to be as collaborative as possible with the representatives of applicants. It might be unique to this case, but I got a sense of tension on both sides, particularly during the second application when the pause was requested and denied, reasonably as I have found...a better approach would have been to convene a meeting with Appeal to understand what was being proposed and why' (point g, page 112).
This is another issue that the CCRC was alerted to almost 15 years ago following primary research by Glyn Maddocks and Gabe Tan into the relationship between the CCRC and applicant solicitors, and how the way in which individual CRMs undertake their investigative role appears to vary. In particular, it noted how case reviews were something of a lottery, urging CCRC Commissioners and/or CRMs to be more receptive towards the constructive role and assistance that experienced solicitors representing applicants can offer in the case review process.
Mr Henley's final recommendation was that:
'The CCRC should be provided with more resources by Government' (point i, page 113).
Again, this is not something that I would disagree with in principle. It is right that any governmental body that sees the level of increase in its workload that the CCRC has seen over the last decade warrants an increase in funding so that the work can be conducted appropriately. However, I would caution against a widespread belief that more money for the CCRC will deliver an increase in justice. As I wrote recently in response to calls for the CCRC to receive more funding, unless and until the real possibility test is reformed, so that the CCRC can truly assist innocent victims to overturn their convictions, it wouldn't make any real difference to the present situation even if the CCRC had an unlimited budget. Yes, the statistically rare cases that are referred will likely be referred quicker, which is definitely a good thing in the sense that some victims of wrongful convictions would spend less time in prison, for instance. However, the cases that are rejected because they are not deemed to fulfil the real possibility test would still be rejected.
Conclusion
My conclusions are:
Mr Henley's review is not independent. It was commissioned by the CCRC. The CCRC determined the terms of reference. And, the CCRC paid Mr Henley for the review.
Mr Henley's review failed to reference or engage at all with the existing literature, previous reviews or widespread concerns that the real possibility test lies at the centre of how the CCRC can fail innocent applicants, which raises critical questions relating to it's purpose.
Mr Henley considered only a single case other than the case of Mr Malkinson, the case of Mr Nealon, which renders his review meaningless in terms of wider relevance or applicability.
Mr Henley's review reads as though he decided at the outset that the real possibility test was not to be problematised and to conduct a review that affirmed it's appropriateness.
Mr Henley's recommendations read like old wine in new bottles, which will do nothing to address the most significant problem for why the CCRC rejects the applications of alleged innocent victims of wrongful convictions - the real possibility test.
It is from these conclusions that I argue that Mr Henley's review of the Criminal Cases Review Commission's handling of the Andrew Malkinson case is best seen as partisan trojan horse defence of the real possibility test.
In terms of what might be done in response to Mr Henley's review to improve the chances for innocent victims of wrongful convictions who make applications to the CCRC, the concluding remarks of the CCRC's response to it provide little hope that things are going to get any better. It reads:
'The CCRC is dedicated to finding, investigating, and referring possible miscarriages of justice and we make an important contribution to the criminal justice system. We have referred 839 cases for appeal, and the Court of Appeal Criminal Division has often commended our investigative work and analysis. Two large independent academic research projects, that have been published and provided evidence in parliamentary inquiries, examined our decision making and found no evidence that we were missing opportunities to refer cases for appeal' (page 123).
The CCRC cherry picked the academic research projects referred to from all of the available research as they are supportive of the CCRC. Like Mr Henley's review, which the CCRC will likely reference when the real possibility test is questioned or critiqued, the academic researches may appear to be critical of the CCRC on the surface. But, when looked at more critically it becomes apparent that they are also not critical in a way that fundamentally challenges the underpinning spectre of the real possibility test and how it fails innocent applicants. In this sense, the research referenced and Mr Henley's review can be conceived in the context of the proverbial rearranging of the deckchairs on The Titanic as they also fail to deal with the most significant problem.
By Michael Naughton
Dr Michael Naughton is the Founder and Director of Empowering the Innocent (ETI) and a Reader in Sociology and Law at the University of Bristol. Click here for more about Dr Naughton.
Comments