Andrew Malkinson
The Criminal Cases Review Commission (“CCRC”) has announced that the case of Andrew Malkinson is being referred to the Court of Appeal (CoA), but the CCRC refuses to disclose to CCRC Watch vital information about how a successful application was made based on allegedly new DNA evidence. If the CCRC continues to refuse to disclose the 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 knows of novel DNA analysis methods but will deny access to people desperate to clear their names?
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. 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”[1].
According to the CCRC website, “We are completely independent. We do not work for the government, courts, police, or the prosecution. We don’t work for anyone applying for a review of their case”[2].
This statement infers that the CCRC has total control over what they choose to consider about a case and whether to explore any particular avenues of investigation. It also makes clear that the CCRC feels no obligation to form a partnership with an individual making a submission claiming that a miscarriage of justice has occurred. Thus, the applicant to the CCRC is powerless to influence what action the CCRC chooses to undertake, including whether to examine DNA evidence.
When rejecting an application the CCRC uses a stock phrase, “The Commission has reached a final decision not to refer your case to the Court of Appeal and the file on your case has now been closed”. They might as well add, “and we are now going to forget all about your case, for ever”, as this is in effect what happens.
Indeed, the attitude of the Court of Appeal (CoA), which the CCRC is bound to consider, is that it is not really interested in reviewing convictions when scientific processes are improved upon so as to raise doubts about the original conviction. The CoA wishes to avoid considering cases that have already been decided upon evidence as it existed at the time of the trial. Tough luck if science now suggests that you are innocent.
Note that in the CCRC account of how Mr. Malkinson’s case came to be referred to the CoA there is no mention of the charity organisation called APPEAL. This is clearly a deliberate deception, designed to give the public the perception that the CCRC was responsible for instigating the necessary forensic work. But without the actions undertaken by APPEAL, Mr. Malkinson’s case would never have reached the Court of Appeal. Following a Freedom of Information request made to the CCRC on 25th January 2023 the CCRC stated:
This referral relies on new DNA evidence obtained by the CCRC using techniques and technology that were not available at the time of the CCRC’s last forensic review[3].
The CCRC was first alerted to potential forensic developments in December 2020.
At that time, the CCRC urged Mr Malkinson’s representatives to provide us with the new evidence.
A new application was received in May 2021 at which point the CCRC initiated a full forensic review.
Point 2 is very revealing for it confirms that it was the charity, APPEAL, that identified the possibility that “potential forensic developments” could assist Mr. Malkinson, thus confirming that the CCRC was at that time seemingly unaware of these forensic developments or ignoring them in the case of Malkinson.
Point 3 reveals that after being alerted to potential forensic developments, rather than pursuing the subject themselves, the CCRC asked APPEAL to find new evidence.
In April 2021, 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.”
But, what about 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 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.
The forensic archive
According to their website “The Forensic Archive was established in 2012 to look after more than four million items relating to forensic examinations and investigations carried out by the Forensic Science Service on behalf of the Criminal Justice System. The material, some of which dates back to the 1930s, includes millions of casefiles, frozen material (such as DNA extracts) and retained items including microscope slides, fibre tapings and recovered hairs.
Private individuals, appellants and defence solicitors, for example, cannot access the archive; their first port of call should be the original investigating police force”.[4]
In 2012, the BBC reported: The closure of the forensic science archive in England and Wales will cause miscarriages of justice and stop police solving crimes, senior politicians, scientists and lawyers have warned[5].
The forensic archive has been closed to save money, meaning forces will have to create individual storage systems. The Association of Chief Police Officers (Acpo) said the "consolidated" archive provided a "safe, secure and efficient facility".
Since March 2012, the government stopped the FSS from taking on more material, arguing that it had been losing money. Now, each of the 43 police forces across England and Wales must arrange its own storage of future forensic records. As we have seen in many alleged miscarriage of justice cases, police forces regularly destroy forensic evidence, even when Court orders have been made to preserve the evidence.[6] The closure of the centralised archive facility will inevitably lead to abuses of power by police forces whether by accident or design.
The decision has drawn criticism from experts and campaigners.
Alastair Logan - a member of the Law Society's Human Rights Committee who helped overturn the convictions of the Guildford Four, who were wrongly imprisoned for an IRA bombing in the 1970s - said the closure was an act of vandalism by the government: "They have destroyed a very valuable resource. They have put nothing in its place and miscarriages of justice will occur," he warned. Speaking to the BBC, Mr Logan also said the move would create a two archive "lottery" - one old and centralised, the other new and fragmented.
"You now have 43 forces keeping their own bits and pieces, insofar as they decide to keep them at all," he said. "If a perpetrator of a rape, rapes in London and then Manchester, how will it be possible for the London people to know about the Manchester offence?"
Andrew Miller MP, chair of the science and technology select committee, also hit out at the change. He said: "I genuinely fear for justice - both in terms of victims and the accused." Mr Miller said the closure was "a shallow decision, poorly thought out", and driven by a short-term policy to save money. "It really is just another Home Office shambles."
He also underlined the potential setback to scientific advances: "Unless we get this right, the chances of exploiting new advances in science will be diminished and so justice will be the loser."
A Home Office spokesman said:
"The police and criminal justice system continue to have proper access to forensic records to enable them to protect the public and bring criminals to justice. The archive is under the guardianship of the Home Office and provides materials on request to authorised users," The costs are kept under review to ensure value for money for the taxpayer and we will consider the longer-term approach to protecting archive materials with criminal justice partners."
However, no new funding or facilities have been made available to police forces to set up and maintain future storage. Instead, it will be up to individual forces to arrange for a contract with a private provider, or to store it themselves.
The FSS archive is expected to receive £2m a year to sustain its operation and 21 members of staff. Dr Peter Bull, an expert in forensic sedimentology from the University of Oxford, said the measures would be totally inadequate. "That's ludicrous - that's two sites. They've got to be like Fort Knox. Two million pounds a year won't pay for the paint to keep the walls clean."
Dr Bull also warned the new archive system could lead to major miscarriages of justice, with innocent people being kept behind bars and some criminals remaining at liberty. "The one in prison will see his sentence out, the one who could have been detected will go scot-free," he said. "It's horrendous, absolutely horrendous."
The CCRC role in monitoring scientific advances
It is obvious that had it not been for the charity APPEAL Andrew Malkinson’s case would never have been re-examined and he would not have been given a chance to clear his name. It is deeply worrying that the CCRC’s preferred stance is to operate in total isolation. One of the greatest areas of complaint from applicants to the CCRC is the failure of the CCRC to engage constructively with applicants. On this subject, Chairman Helen Pitcher has stated that, as an independent body, the CCRC cannot be in situation where it is perceived to be collaborating with an applicant[7]. Why on earth not? Surely the whole point of the CCRC is that it exists to investigate alleged miscarriages of justice, so why not work alongside the victim of the miscarriage?
At the founding of the CCRC in 1995 one of the stated aims was that the new organisation had to be independent of ministerial influence[8]. Independence was never meant to be interpreted as working in isolation from everyone. It is bizarre to think that the applicant and/or their supporters have no useful role to play in progressing an application. Indeed, the work undertaken by APPEAL on behalf of Andrew Malkinson demonstrates how valuable their input was.
It is often the case that before a submission is made to the CCRC an individual, or more often a campaign group, have undertaken extensive research into an alleged miscarriage of justice, often compiling a mass of data in support of the submission. Frequently, the person(s) making the submission is/are more familiar with the case than the CCRC staff, but once the submission is made they are then ignored. Presumably this is so that the CCRC can claim to be ‘not collaborating’ with the applicant?
In relation to the Malkinson case the CCRC had to be alerted to forensic developments that it was seemingly unaware of. Rather than undertake investigations themselves the CCRC placed the onus (and cost) upon APPEAL. After APPEAL undertook “hundreds of hours of investigation” the CCRC finally acted. Thus, when it suited them the CCRC was happy for an external organisation to undertake the role of instigator, investigator and catalyst for action. Seemingly, without any undue impact on the CCRC’s independence. But note APPEAL’s comment: “The DNA breakthrough in this case was very nearly rendered impossible by the police’s unlawful failure to retain key exhibits”.
The CCRC have stated: “This referral relies on new DNA evidence obtained by the CCRC using techniques and technology that were not available at the time of the CCRC’s last forensic review”.
In relation to the new DNA analysis techniques reportedly used in the Malkinson case, the CCRC have been asked by CCRC Watch to outline what the new techniques involve. The CCRC has refused to do so, claiming that “the CCRC cannot publicise operational detail about investigations and is bound by legal limitation of what we can share publicly from our case reviews (see section 23 of Criminal Appeal Act 1995)”.
Thus, the CCRC won’t reveal what the new techniques and technology are. This appears to be obstructive to the stated aims of having a CCRC to overturn miscarriages of justice and adds to the frustration of applicants who feel that DNA evidence could assist them to overturn their conviction, for example in the case of Ray Gilbert[9], who has been asking for new DNA testing on items related to his trial and Robin Garbutt, who would like to know why DNA belonging to a police officer was found in the bedroom of his wife and on the murder weapon.[10]
Is it simply the case that the CCRC refuses to reveal the ‘new’ DNA analysis techniques to potentially save money? Alternatively, is it the case that the alleged ‘new’ DNA analysis techniques don’t exist and the CCRC has invented the story to cover up the fact that after rejecting Malkinson’s application in 2012 they just forgot about him?
The only way of determining the facts is if the CCRC describe what the new DNA analysis methods are and how they differ from what was done in the past, otherwise there will remain a lingering doubt about whether the CCRC has been entirely honest in its account of events.
In any event, shouldn’t the CCRC be an authority on forensic testing and be producing articles on their website describing advances in forensic analysis techniques that could potentially assist applicants?
Conclusion
The situation surrounding forensic evidence is a mess and a disaster waiting to happen. As predicted in 2012, the cost-cutting measures will result in miscarriages of justice. The CCRC could ameliorate this to a considerable extent by instigating rigorous internal procedures so as to ensure that people like Andrew Malkinson don’t get forgotten. If the vital issue in an application is DNA related, there must be some way of prompting Case Review Managers to revisit an application when forensic testing improvements become known, perhaps years after the case has been ‘closed’ by the CCRC.
Many applicants to the CCRC are not supported by an organisation such as APPEAL. They have nobody on their side keeping a watchful eye on scientific developments, or indeed with access to the forensic science archive. Thus, the only hope for the majority of applicants is a vigilant CCRC that publicises advances in science that could assist applicants. Unfortunately, at the present time, the CCRC is asleep at the wheel. It has neither the motivation or management systems in place to cope with the situation and needs to acquire them urgently if future cases similar to Andrew Malkinson are to be dealt with effectively.
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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References
[1] New DNA breakthrough leads to rape and assault conviction being sent back to the Court of Appeal - Criminal Cases Review Commission (ccrc.gov.uk). [2] About the Criminal Cases Review Commission - Criminal Cases Review Commission (ccrc.gov.uk). [3] This was in 2009 and lasted until 2012. [4] The Archive – Forensic Archive. [5] BBC 18 July 2012. Closure of forensic archive a 'shambles', experts warn - BBC News. [6] See, for example, Jeremy Bamber Campaign Official Web Site - Peter Tatchell (jeremy-bamber.co.uk). [7] CCRC releases official response to the Westminster Commission report - Criminal Cases Review Commission June 2021. [8] Elks, Laurie, Righting Miscarriages of Justice, page 14. [9] Why will the CCRC not investigate Ray Gilbert’s claim of innocence for the murder of John Suffield? (empowerinnocent.wixsite.com). [10] DNA and the Robin Garbutt case: Is the CCRC possibly assisting a murderer to escape justice? (empowerinnocent.wixsite.com).