He was wrongly locked up for 17 years – but Andrew Malkinson is one of the lucky ones

Why did the authority that investigates miscarriages of justice ignore vital new DNA samples that would clear a man of rape? What excuse did they give for sitting on the evidence – handed over to them by the police – for four years? The answer is truly shocking, writes chancellor of the University of Manchester and former chief crown prosecutor for North West England Nazir Afzal

Andrew Malkinson spent nearly two decades in prison after a false rape conviction (PA Wire)

It might seem odd – offensive, even – to describe as “lucky” a man who was wrongly convicted of a heinous sexual offence, and who served 17 and a half years in prison before being released to attempt to rebuild his life whilst branded as a registered sex offender and subject to onerous licence conditions.

None of us can begin to contemplate the immense trauma that has been endured by Andrew Malkinson and his loved ones in the decades in which he described himself as having been “kidnapped” by the state before his conviction was finally quashed by the Court of Appeal last month.

Yet it has become increasingly clear that Mr Malkinson was extremely lucky to have managed to overturn his wrongful conviction at all due to serious failings from every part of the criminal justice system, including the public body which was established with statutory authority to investigate miscarriages of justice, the Criminal Cases Review Commission. The CCRC was established in the wake of a series of serious miscarriages of justice – notably the Guildford Four and Birmingham Six – which had raised serious questions about the weaknesses of the criminal justice system and the ability of the system to recognise and remedy wrongful convictions.

Major questions have been asked about their ability to fulfil their mandate, particularly in light of savage financial cuts to their budget in recent years. The Westminster Commission on Miscarriages of Justice released a report in 2021 following a rigorous investigation into the workings of the CCRC. The report highlighted some of the significant roadblocks that currently exist to prevent miscarriages of justice from being effectively identified and remedied in a timely manner.

One of the chairs of the Westminster Commission, Lord Garnier KC, is one of two former solicitors general, alongside the former justice secretary Robert Buckland, who have now called for a public inquiry to be launched into the Malkinson case, so serious are their concerns over its failings.

The Westminster Commission had drawn a clear conclusion that the structure of the CCRC requires reform, including recommending the strengthening of the investigative capability of the organisation through an increase in their budget, and a reinforcement of their available sanctions for non-compliance with disclosure requests, both of which are viewed by most campaigners as long overdue. These recommendations have yet to be taken forward, although the Law Commission has recently published an issues paper as a part of a wide-ranging review of the criminal appeals system, meaning the current attention on this issue could be timely indeed if the lessons of the Malkinson case can be swiftly learned.

Mr Malkinson’s plight perfectly illustrates that many of the fears expressed by the Westminster Commission as to the potential failings of the CCRC are clearly well founded. The impact of budget cuts had an explicitly negative impact on the decision making of the CCRC on the two previous occasions when they considered Mr Malkinson’s applications and failed to uncover the crucial evidence which fatally undermined the safety of his conviction. The internal case logs from the CCRC reveal that when discussing Mr Malkinson’s application for them to conduct the DNA testing which eventually cleared his name, the CCRC dismissed his request, commenting “the cost cannot be ignored” and “further work would be extremely costly”.

It must be noted that the CCRC were declining to carry out this work some four years after the CPS and Greater Manchester Police had first been told in 2009 that a searchable DNA profile which was not Mr Malkinson’s had been recovered from a “crime specific area” of the victim’s clothing. Had the CCRC taken the basic step of obtaining and reviewing the police files, it is they and not the charity APPEAL who would have uncovered the many flaws in the case, including evidence hidden in the police files which was not disclosed to Mr Malkinson’s defence team, and which the Court of Appeal found to be an additional ground on which the conviction was unsafe.

The current system is built around the premise that the CCRC are the safety net in uncovering miscarriages of justice. They alone have the legal powers to access all necessary police and prosecution files for review, should they choose to do so. Appellate lawyers acting for victims of miscarriages of justice like Mr Malkinson face untold hurdles in trying to gain access to such material; in Mr Malkinson’s case, his lawyers had to take Greater Manchester Police to court twice to gain access to the relevant material.

This brings us back to consider in what way Andrew Malkinson could possibly be described as lucky. He was repeatedly failed by every element of the criminal justice system which not only saw him convicted for a crime of which he was innocent, but which repeatedly ignored his pleas of innocence, unnecessarily prolonging his detention more than a decade beyond his initial tariff period because of his failure to admit guilt and to reduce his risk of reoffending by carrying out offending behaviour courses.

He was “lucky” because some other people did hear his pleas and took action. His friends and family remained steadfast in their support through his years of incarceration, and they were joined in their fight for his freedom by notable supporters including the investigative journalist Bob Woffinden, who in 2016 wrote a chapter on the Andrew Malkinson case in his book The Nicholas Cases: Casualties of Justice. He, unlike the CCRC, appreciated the glaring flaws in the conviction.

Suzanne Gower, then the managing director of the legal charity APPEAL and now a lecturer in Miscarriages of Justice at the University of Manchester, recalls having read the chapter a short time before receiving a letter on behalf of Mr Malkinson, which was a crucial factor in his being one of the tiny proportion of cases which the small charity is able to take on for further investigation and eventual representation. This was a key moment in his long fight for justice as it was only due to the dogged and persistent efforts of the lawyers and investigators at APPEAL that the key evidence which led to the quashing of the conviction was finally uncovered.

Andrew Malkinson was one of the tiny number of applicants able to secure legal representation from charities like APPEAL, or Innocence Projects such as the one we run at the University of Manchester, where I am the chancellor. The proportion of applicants to the CCRC able to secure legal representation has plummeted in recent years, and yet it is widely acknowledged that unrepresented applicants have a much lower prospect of having their cases referred back to the Court of Appeal. Such applicants are entirely dependent upon the CCRC case review managers having the resources and desire to conduct all necessary inquiries. Critics of the CCRC fear that for both financial and cultural reasons, this simply is not happening.

Lord Garnier KC summed up this lack of investigative vigour on the BBC Radio 4’s Today programme:

“The word bystander or spectator was going through my mind. What’s the point of the CCRC if, presented with questions which need answering and which they have the constitutional duty to investigate, they do nothing?

Andrew Malkinson’s wrongful conviction has been uncovered in spite of the mechanisms set up to carry out this task, not because of them. It is an indisputable fact that juries can and do make errors and sometimes the wrong person will be convicted.

Recognising the fallibility of both the systems and humans involved requires us to fortify the validity and moral authority of the criminal justice system by providing a stronger and more effective mechanism for identifying and remedying such errors when they do occur.

Andrew Malkinson and his loved ones – and the unknown number of other wrongfully convicted people who may not have been as “lucky” as he – deserve nothing less.