Felicity Stryjak
'There is an elephant in the room that houses Andrew Malkinson’s wrongful conviction.'
When I was 10 years old, and children could ‘free range’, three friends and I got permission from our parents to go to the local park and take a picnic. The day came and clutching my packed lunch, I went to call for the first friend and the two of us went to call for the third. She didn’t want the fourth girl to come, so the three of us agreed to not call for her and we went to the park, had a lovely time and went home.
I was greeted by my mother who asked me if we all had fun. ‘Yes, thank you,’ I replied. ‘All of you?’ she pressed. ‘Yes,’ I affirmed again. I had never, until that point, seen her so angry; a deep, clear and smouldering anger, shining from her eyes that threatening to erupt if I didn’t tell her, from that moment, the absolute truth. It wasn’t that I hadn’t needed to be taught not to lie before then, children lie and test boundaries from an early age, but this was the first time I had involved someone outside my immediate family. Unbeknown to me, the mother of my snubbed friend had telephoned my mother to ask where the three of us were. Perhaps the outing had been called off or we were running late for some reason?
Furious at what she called ‘a big, fat, black, lie’, my mother explained at length the hurt and upset that I had caused and the unkindness and selfishness of my actions. She made me go to my friend’s house immediately to apologise, fully and unreservedly, and forbade me to blame my friends for what I had agreed to do. I, she impressed upon me, was responsible for MY actions. Sixty years on, I still feel the shame of that day – and, incidentally, the relief as I tried to put it right.
Lies come in all shapes and sizes, (and shades of black), from the false compliment to spare hurt feelings (an acceptable ‘white’ lie, according to my mother), to lies of omission, to the false statement intended to destroy a person.
Behind every false accusation is a bigger, fatter and blacker lie than I have ever told, and even if the lie starts out by being pale grey, it can get blacker and more damaging as it develops a life of its own.
I’m wondering if that may be a part of the Andrew Malkinson story yet to be told.
Bob Woffinden was an investigative journalist who wrote a book called ‘The Nicholas Cases’ in 2016. In this book he examined ten cases of wrongful convictions, including some that stand no hope of being put right, one of which was Andrew Malkinson’s.
To backpedal a little – in 1981 while a student at Syracuse University, Alice Sebold, author of ‘The Lovely Bones’ was raped in a pedestrian tunnel. There is no doubt that Ms Sebold was the victim of rape, and she was so traumatized by it that she eventually wrote a book, ‘Lucky’, documenting her experience - and in the process, waived any hope of anonymity.
Some months after the attack she saw a man whom she thought was the culprit. Though she could not identify him in a parade, a young man, Anthony Broadwater was charged, tried and convicted of the crime and served 16 years in prison, all the while maintaining his innocence.
He was released from jail in 1999 and exonerated in November 2021, when the disclosure and forensic evidence was shown to be faulty. Not least of the issues was the fact that Ms Sebold had been coached by the prosecutor to identify Mr Broadwater as the culprit in court, when she had not been able to identify him in an identity parade, even though he showed none of physical characteristics she had described in her statement.
Prosecutorial misconduct, mistaken identification and disclosure failures are all common features of wrongful convictions. Seemingly small lies and mistakes take on a life of their own as they grow in intensity and effect. The mistake of ‘that’s the man when it’s not’, (the man Ms Sebold originally identified wrongly) to the mistake of ‘that’s the man’ when it’s not (Ms Sebold wrongly identified Mr Broadwater in court) - to the less understandable mistake/lie of the prosecutor insisting to Ms Sebold that she had just identified the wrong man in the line-up and the true culprit as Mr Broadwater.
When Alice Sebold first had news of Anthony Broadwater’s exoneration, she was thrown for a loop, didn’t know what to do, and ultimately chose to issue a statement apologising for ‘the part [I] unwittingly played within a system that sent an innocent man to jail’. It has been noted that Ms Sebold wrote her apology in the passive voice, thereby failing to ‘own’ the part that she played in his stolen life; but after my experience as a child I can fully understand how difficult it can be to face a mistake head on. Perhaps, as for me, she also felt a a sense of shame and it was that which prevented her from meeting Mr Broadwater face to face as he would have preferred and arguably deserved. Whatever it was it was clear that she ‘felt awful’ about what had happened to him.
To return to the case of Andrew Malkinson and what Bob Woffinden had to say about it, this is another case of police and prosecution pushing for a conviction no matter the cost, and ending up with a miscarriage of justice. That much is abundantly clear.
However, there is an elephant in the room that houses Andrew Malkinson’s wrongful conviction. It may be convenient to ignore it, as after all, what more can be achieved (legally) than an exoneration? However those who are interested in ‘the truth, the whole truth and nothing but the truth’, (i.e. the whole story), have more to say about it. Given the vast range of system misconduct that led to the wrongful conviction, it makes sense that a legal team should concentrate on provable facts rather than anything approaching conjecture but there is more to be said. Much more.
It has been said that, when investigating a crime, the police often home in on a suspect, and look for evidence to fit their narrative. This is exactly what the police did to Andrew Malkinson in their failure to examine the DNA evidence that finally played a part in his exoneration.
So, what of the hand bag? The what? Yes, the handbag.
Watch any current police drama and you will see the characters carefully examining every inch of a crime scene. Nothing escapes their notice; nothing fails to have a potential story attached to it. Why is this here? How did it get here? Why is it left here? Who does it belong to? I’m sure you know the drill. Does this happen in real life? Let’s look at Andrea Prestwood’s apparent experience and the details outlined by Bob Woffinden.
As he says, ‘too many aspects of the alleged victim’s account invite scepticism and there is also the handbag mystery’.
In a nutshell, Ms Prestwood had argued with her boyfriend in the small hours of the morning, he had not let her have her car keys because she had been drinking heavily and she went off into the night, harassing him and his parents by calling them from her mobile to their landline. Her account of that argument differs from his and text messages indicate that his is the more reliable.
At 3.40am she told him that she ‘had found somewhere warm and dry’ and was ‘safe’, but there was no further communication for 45 minutes, a gap that was completely unexplained. She claimed to police that she heard a voice in the bushes and was threatened with a gun, but rather than call the police or raise the alarm in any way, she sent her boyfriend a text. In court she had no explanation for that, but there the matter ends. She claimed that she scratched her assailant’s face with her right hand, but it is the nail on her left hand that was broken, and could not explain how her own facial injuries occurred.
As for the handbag, she claimed it contained over £200 in cash, a camera that she thought may have been a Canon, a pioneer car radio facia, her bank card, driving licence, insurance certificates, lip gloss and her supply of insulin.’ There was also a bottle of Coke on top, which meant that she could not close it. It was a very full bag and as it wasn’t in her possession when she made her statement, she said she thought it had been stolen.
Bob Woffinden notes however that hearsay evidence suggests it was found, possibly hanging from a fence post at the top of the bank. In any event, the police did not find it or any of its contents strewn about; nothing about it or the contents was forensically examined for DNA and Mr Malkinson was not charged with theft. It just vanished from the investigation along with all of its contents.
There are other details relating to the amount of money in the handbag and what it was or was not spent on that further call Ms Prestwood’s account into question - because there has been no explanation sought or offered, and there is a feasible theory of what happened that has never been officially explored.
To quote Bob Woffinden fully on this:
“Here is one possible explanation of what happened after a night’s heavy drinking. Prestwood had a serious argument with her boyfriend. That much she acknowledged. She angrily left the house at 2.30am and then proceeded to harass him and his parents with a succession of phone calls to their landline.
At about 4.30am, she stopped to relieve herself and put her handbag by a fence-post, but then fell down the bank, knocking herself unconscious. Almost all of her injuries can be accounted for by having fallen down an overgrown brambly bank. When she was examined, the surgeon noted, among other things, ‘fine, superficial scrapes of the skin [which] resembled scratches from vegetation’; ‘puncture marks of the right forearm [which] could have been caused by vegetation (e.g. hard twigs); and ‘abrasions of the legs, [which] are consistent with a scraping motion relative to a rough surface’.
The tear in her anus could have been caused simply by falling down the bank. As Prestwood said herself, ‘I slid down on my bum’.
When she came to, she felt she would be ridiculed if she admitted to having injured herself falling down a brambly bank. It must have been tempting to try to cover her embarrassment. Also, fearing that, having kept her boyfriend’s family awake half the night, she would not be welcome back at the house, she may have felt she had to create a sympathetic story. Perhaps her ‘ordeal’ would also serve the purpose of making him feel bad for not having been there for her (as her text messages had indicated).
To concoct an allegation, all she had to do was to rip her knickers and throw away her mobile phone” (The Nicholas Cases, p200-2001).
Incidentally, the prosecution withheld mobile phone evidence and also evidence relating to her alcohol intake. All that was revealed to the defence was that ‘when she was examined at midday, she was still smelling of alcohol’.
Ms Prestwood may not have the cover of anonymity, (Bob Woffinden notes that names 'may have been changed including those victims of sexual offences who have anonymity), so one wonders, if she hasn't, why has she not come forward to express some sympathy for Mr Malkinson's ordeal and even if she has, does she not consider Mr Malkinson's ordeal important enough to waive that anonymity? Or at least contact him privately, under which circumstances it is likely to have been reported but has not been to my knowledge. Much like the CCRC, mistakes of this magnitude are too often studiously ignored, and in modern parlance, not 'owned'.
Whether she told a lie or not – and lies to cover embarrassment happen all the time - there can be and is a great deal of sympathy for them, but time has a tendency to uncover them. In 2017, Carolyn Bryant Donham finally admitted that she lied about Emmett Till in 1955, and this led to his murder. Consciences can prick in old age.
On 24th Jan 2023, a full 6 months before Mr Malkinson’s conviction was overturned, The Guardian reported that a 48-year-old man from Exeter was arrested on 13 December 2022 on suspicion of the rape in 2003 for which he was convicted, and had been released under investigation. Nothing more has been said publicly about this since, and news reporting being what it is, the public may never get to know if a charging decision has been made or if indeed another man has been tried for the rape of Ms Prestwood.
The facts of not conducting a proper and thorough investigation, of railroading an innocent man into jail, of refusing to accept an appeal on a case that is riddled with prosecutorial misconduct and disclosure failures lie firmly at the door of the police and the CPS and ultimately on their consciences and those of the politicians who allow it.
There is still plenty of doubt, however, as to what crime was committed and by whom. Even so, whether another man is responsible or no crime took place, Ms Prestwood - just as Ms Sebold did - identified the wrong man which resulted in his serving a lengthy jail sentence, robbing him of decades of his life. It can be argued that the police and CPS are infinitely more culpable, given that it’s their job to investigate (AND they openly state that ‘our job is to prosecute the right person for the right offence’), but like Ms Sebold, Ms Prestwood played a part in it all.
I am not for a moment, claiming that Ms Prestwood is lying any more than Mr Woffinden did. The mystery of the handbag and, therefore, the potential for a false allegation is, at this point, simply a theory that SHOULD have been thoroughly investigated, and because it was not, there are still many unanswered questions relating to this case. There was, perhaps, an initial ‘white’ lie to gain sympathy that ‘grew like topsy’ with consequences never imagined. There was, perhaps, no lie at all – except the lies of omission and otherwise told by the police and the police manufacture of a suspect.
The fact remains that all of this is not clear.
The fact remains that when misidentification is a factor in a wrongful conviction, it seems to be impossible for those who made the mistake to say, publicly or otherwise, ‘I am sorry, I made a mistake. I misidentified a man who spent an unnecessary number of years in jail.’
Why does any of this matter?
Because I come back to the relief that I felt when I went to see my friend all those years ago. Admitting a mistake is cathartic for all concerned, victims can and do make genuine mistakes in their recollections and in their identification as demonstrated in these two cases. There is no shame in that, nor is it victim-blaming to point out that a mistake has been made. The shame is in not facing the mistake or trying to make restitution by offering a sincere and genuine apology.
It is to be hoped that Mr Broadwater and Mr Malkinson are able to salvage an existence they can enjoy from the wreckage of their lives and the years left to them.
I can’t help but wonder what Ms Prestwood is feeling about it all these days. It is also to be hoped that both women will come to have peace within themselves, and that the burden of having made a mistake or looked for sympathy with such dire consequences can become lighter.
It took Carolyn Bryant Donham 62 years to acknowledge her part in the Emmett Till case. That’s a long time to bear such a burden.
Felicity Stryjak
Felicity Stryjak is retired having worn many hats in her life so far, teacher and paralegal among them. She was born in Torquay in 1953 and has lived in a variety of interesting places both in the UK and abroad. She intends Scotland to be her final place of abode.
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