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Andrew Malkinson and the Empty Scales of Justice

"Andy Malkinson" by Sean Bw Parker

"Even now, two and a half years after release, Andy Malkinson is homeless and surviving on benefits and receives no support from the probation service for help with either of those issues because they ‘only work with the guilty'.’'

On 26th July 2023, a momentous decision was made in the Court of Appeal. Andrew Malkinson won his appeal against a conviction for rape, a rape that he maintained from the outset that he had never committed.

On 19th July 2003, the 33-year-old victim had been walking home in the early hours of the morning when the attack took place. No-one disputed that a crime had been committed; what was in dispute was who had committed it and though Malkinson was identified by the woman in an identity line-up, he did not fit the description she had previously given, he had no scratches on his face as she claimed and there was no DNA evidence at the time linking him to the crime, amongst other anomalies. The jury clearly had their doubts too, as he was convicted in July 2004 by a 10-2 majority verdict. Charged with 2 counts of rape and attempting to choke, suffocate or strangle with intent to commit rape and attempted murder, he was found guilty of the rapes but not the attempted murder.

It is difficult to imagine the horror that a person must feel when incarcerated for a crime, let alone such serious crimes, while knowing that they are innocent. It’s bad enough that that can happen, but the lead up to the conviction and the events since defy description.

The authorities, that is the police, the Crown Prosecution Service (CPS) and the Criminal Cases Review Commission (CCRC) insist that these events are ‘extremely rare’, but that is small comfort for those who are caught up in the nightmare of not only being accused of something they did not do, but charged, convicted, imprisoned and to a very great extent ignored thereafter; small comfort indeed to Malkinson and the list of people still in the system with similar stories to tell, all equally ignored. People like Clive Freeman, Ben Geen, Robin Garbutt, Stephen Hamilton, Eddie Gilfoyle and others all scream their innocence in a vacuum while those that are supposed to ensure that justice is ‘fair’ turn a blind eye to the antics employed to secure convictions.

Andy Malkinson would have served just over 6 years had he admitted guilt and acted accordingly. Harsh punishment, indeed, to double his time held behind bars. As he says, he felt as though he had been kidnapped by the state. To add insult to injury, the processes apparently in place to rectify such injustices failed to do their job. As he said in his statement on 26th July 2023 as he left the appeal court:

“I came to the police station in 2003 and told the officers I was innocent. They didn’t believe me.

I came to the crown court in Manchester in 2004 and told the jury I was innocent. They didn’t believe me.

I came to this appeal court in 2006 and told them I was innocent. They didn’t believe me.

I applied to the Criminal Cases Review Commission, which is supposed to investigate miscarriages of justice, and told them I was innocent. They didn’t investigate and they didn’t believe me. Not once, but twice.

Today we told this court I was innocent and, finally, they listened. But I have been innocent all along, for each of those 20 years that came before today. Nothing any police officer, court or commission said about me since 2003 changed that reality.’’

Eventually released in 2020, it has taken a further 2 ½ years since then for his appeal to be heard and the machinations of the authorities to explain away the route to that day beggars belief.

Manchester Police have offered a somewhat hollow apology, hoping that he now feels some sense of justice; but they acknowledge that evidence was illegally destroyed and that it’s ‘common practice’ for files to be ‘weeded’ and altered when cases are closed. It seems to have escaped their notice that in the case where a person is maintaining their innocence, especially to the point of remaining incarcerated, and appeals are ongoing, that the case is not closed at the moment of the verdict but remains ‘live’ until all such systems are exhausted. Malkinson saw through the apology for what it was and dubbed it ‘a PR exercise’. It was argued successfully at appeal that Malkinson did not receive a fair trial because of grave disclosure failures on the part of the police.

Painted as a drifter because he was in a visit to the UK from his adopted home in the Netherlands where he had legal residency, no stone was unturned in the effort to secure a conviction. Of course, it’s common knowledge now that the issues of disclosure (or rather lack of it) run deep in the justice system, with the publicity surrounding the case of Liam Allan and others in 2017, but memories such as those seem to take up residence in the back of the public mind and it seems that the problems need to be stated time and time again.

The CCRC have effectively tried to claim credit for his exoneration, with the Chairman, Helen Pitcher, OBE, congratulating Malkinson on his success but lamenting that 'unfortunately the DNA evidence was not available at the time’ and failing to acknowledge who the appeal came to succeed. It seems to have escaped her notice that a tiny charity, APPEAL, has worked tirelessly to investigate and prepare the appeal - the work that the CCRC should have been undertaking all along, rather than consistently hiding behind the ‘real possibility test’ which effectively refuses to put cases forward to the appeal court unless and until they are sure that the appeal will succeed. This is not what they were set up to do. They are not meant to be gatekeepers but investigators, and, like the police, they appear to do little of it.

Twenty years it has taken for this decision to be made, but for Andy Malkinson it is only one step along the very long road as the next consideration becomes compensation.

No right-minded person thinks that such a grave injustice shouldn’t be compensated, but it appears that our government repeatedly puts road blocks in the way of what is right and expects praise to be heaped upon it if it is ever forced to remove them.

There was a public outcry as the public began to realise that IF Malkinson is awarded compensation, it will be capped at £1m and there will be a deduction for ‘saved living costs’ (effectively board and lodging). Considering that the incarcerated food budget is little more than £2 per day, phone call costs are grossly inflated and ‘canteen’ prices are frankly extortionate, it can be argued that they have paid handsomely already for the fact of their incarceration. It simply adds insult to injustice to try to claw back any of those costs.

On 6th August 2023, the Justice Secretary Alex Chalk MP announced magnanimously that ‘fairness is a core pillar of our justice system’ and ‘decisive’ action has been taken to change the guidance ‘inject greater fairness in how payout decisions for miscarriages of justice are made.’ First introduced in 2006, this element of the calculation, the possibility that the deduction can be made, has been removed.

Of course, this neglects to mention that the criteria for making any award has been an impossibly high bar to meet, give that applicants have to effectively prove their innocence and not just that their conviction has been quashed. Currently, Victor Nealon and Sam Hallam, who spent a total of 25 years wrongly convicted, among others, have been refused compensation for their ordeal.

In 2014, Mr Nealon (who also served 10 years beyond his original tariff), was refused legal aid, refused compensation, and to add injustice upon injustice the MOJ demanded that he pay the £2,500 costs for the DNA analysis on the basis that ‘it did not show beyond reasonable doubt that the claimant did not commit the offence’. He has taken his case to the ECHR, which has yet to rule and will take another year to do so. Similarly, Barry George, who was convicted in 2001 of the murder of Jill Dando, and acquitted at a retrial in 2008, his application for compensation in 2013 was rejected by the Secretary of State and he was refused leave to appeal on the basis that ‘there is little chance of success’. The fight for what it right takes decades.

The new government guidelines, revised on 6th August 2023 notes:

"While the previous guidance included the option for saved living expenses to be deducted from compensation payouts this has not been used in over 10 years."

How disingenuous of them. It has not been used in over 10 years because no substantial compensation has been awarded in over 10 years! As the freedom of information request made by The Justice Gap in 2020 revealed, in the previous 2 years only £10,000 was awarded, £0 in the 2 years before that, £10,000 in the 2 years before that, and out of 361 applications since 2013, only 13 have been made an award at all.

It’s easy to say ‘no deductions for saved living expenses have been made’ when no awards have been made! Successive governments have effectively shut the door on treating the wrongly convicted with anything remotely resembling ‘fairness’. Michael O’Brien, one of ‘The Cardiff Newsagent Three’ who were wrongly convicted of murder and spent 11 years in jail had £37,000 deducted from his compensation, 25% of his award. As Emily Bolton, Andy Malkinson’s lawyer, says, such deductions - bearing in mind that the wrongly convicted should never have been incarcerated in the first place - are mealy-mouthed and just plain nasty.

The failure to compensate the wrongly convicted exacerbates the fact that there is no support for those who leave prison either when remanded and acquitted or wrongly convicted and released on appeal. Even now, two and a half years after release, Andy Malkinson is homeless and surviving on benefits and receives no support from the probation service for help with either of those issues because they ‘only work with the guilty’. The fact that he has another court fight on his hands to have any hope of compensation is unfairness compounded.

Far from the government looking that the issues and applying fairness, all that is happening is a knee-jerk reaction to public outrage. Any talk of ‘common sense reform’ is simply that, just talk. It takes a small charity with people with a real and genuine understanding of justice and fairness to recognise that ‘fairness’ would be meeting the newly exonerated at the steps of the Court of Appeal. This would be with an already worked out package of compensation which would remove the stress and uncertainty of where to sleep, where to get their next meal and provide some of the tools for at least starting on the road of rebuilding what fragments of their lives they can. THAT would be fairness. THAT would be common sense.

Until the State stops relying on an individual’s resourcefulness and charity and puts effort into honestly and reasonably attempting to put right the wrong it has done to someone, Lady Justice’s scales are indeed empty and she is herself, indeed, blind to the injustices perpetrated in her name.

By Felicity Stryjak

Felicity is a member of FACT (Falsely Accused Carers and Teachers), Falsely Accused Letters To The Establishment (FALTTE) and is Secretary of False Allegations Forum (FAF).

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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