Seventeen years: what does Andrew Malkinson’s wrongful conviction say about the appeals process?

29 August 2023 by Hal McNulty

Missing evidence

Earlier this month, the Court of Appeal overturned Andrew Malkinson’s conviction for rape and related assault offences, for which he had spent 17 years in prison. An appeal in 2006 upheld the verdict and applications to the Criminal Case Review Commission (CCRC) in 2012 and 2020 were denied. Finally, a third application last year convinced the CCRC to order fresh DNA analysis. It was this evidence as well as treatment of some previously undisclosed information to do with Malkinson’s witness identification which secured his release.

As explained by Lord Justice Holroyde [35], the new medical evidence which points to another suspect would not have been available at the time of the conviction, because of recent developments in DNA analysis. But it appears that other crucial evidence was not made available to the defence from the outset, pointing to flaws in the disclosure procedures. In the absence of scientific evidence, the prosecution’s case in 2004 had relied heavily on the witness identification of Malkinson, that of the victim and two passers-by: Beverly Craig and Michael Seward.  These accounts were not conclusive if taken each on its own merits, but they could, the jury were advised, support each other to identify Malkinson as the attacker. As Holroyde put it, the safety of a verdict based on this analysis would require the jury to be “sure that each was an honest and reliable witness” [19].

However, questions about their honesty and reliability which should have been raised were not. The criminal records of Craig and Seward were not disclosed to the defence, despite a written request for the records of all prosecution witnesses. Previous convictions included offences of dishonesty and fraud, and, at the time of identifying Malkinson, Seward was facing motor offence charges for which he received soft penalties. Cross-examination on this basis may well have cast doubt on the integrity and motivations of the witnesses, but the defence was not given the tools to do so.

One other piece of evidence which should have undermined the defendant’s identification was not given its proper treatment because relevant photographs were withheld. The victim told the police that she had scratched her attacker’s cheek, breaking the fingernail on her left hand, but Malkinson had showed no mark on his face when the police visited him just hours after the offences were committed. The trial judge made the jury aware that, if correct, the victim’s statement would have ruled out Malkinson, but he used the medical examiner’s report, which recorded a broken nail on her right hand instead of the left, to cast doubt on the reliability of this memory of “the last thing she did before she became unconscious” [21]. Previously undisclosed photographs of her hands contradict the medical report, however, by indicating her right middle fingernail was undamaged while her left one may have been damaged. If the defence had been given this evidence, the medical report would have been proved incorrect and the fact that Malkinson showed no sign of having been scratched would have seriously weakened the prosecution’s case.

There were significant problems with all three witnesses’ identification of Malkinson, then, concealed to the court by the non-disclosure of crucial evidence, which allowed a man to be wrongly imprisoned for nearly two decades. The justice system clearly failed. The question is then whether this represents a fundamental defect in our system of evidence disclosure.

Failures in the appeal process

After Malkinson’s 2006 appeal was dismissed, the CCRC refused two applications to refer the case back to the Court of Appeal, despite being made aware in 2009 that DNA belonging neither to the victim nor to Malkinson was present on the victim’s clothing. Finally, in response to DNA analysis commissioned by the legal charity APPEAL, which revealed the presence of an unknown male’s DNA on samples taken from the victim and her clothing, the CCRC used its statutory powers to cross-reference the evidence against the National DNA Database. This led to the arrest of a new suspect, whose DNA had been available since 2012. 

APPEAL argues that such problems are structural: “while investigating Andy’s case we discovered multiple flaws in the system – each one representing a snare that can entrap anyone in a wrongful conviction and even worse, make it much harder for that error to be identified and rectified.” Set up in 1997, the CCRC is a check on miscarriages of justice and is independent from the courts and the government, but its failure here to obtain and review the police files or to order new DNA analysis at an earlier point may reflect its inadequacy as a genuine review body.

In 2021, a report on the work of the CCRC commissioned by the All-Party Parliamentary Group on Miscarriages of Justice was published. The Westminster Commission made a number of recommendations to improve this part of the appeals process. It described the current test for referring cases back to the Court of Appeal – if it considers there to be ‘a real possibility’ of success – as predictive, encouraging a deferential relationship instead of promoting an independent review. It also examined the effectiveness of the CCRC’s investigations, partly driven by financial cuts, which prevented the body from fully using its powers to provide defendants with a further protection against wrongful conviction.

The organisation’s website states, “In the last three years, more than 100 miscarriages of justice have been overturned following CCRC referrals. The organisation has referred 822 cases – an average of one every 11.5 days over the last 26 years. Around 30% of CCRC references are declined by the Court of Appeal.” The last statistic is important, as some critics claim the high appeal rate of CCRC referrals suggests that the body is not sufficiently independent from the Court of Appeal. Steven Bird, Chairman of the Criminal Appeal Lawyers Association, told the Commission, “If your success rate on referrals is 70%, then perhaps you could be referring more cases” [36]. A high success rate is not a problem if the CCRC is using its powers to fully investigate applications and determine their merits, but, as Malkinson’s case demonstrates, this is not always true.

Last week, the government announced an independent inquiry into the handling of Malkinson’s case, which will examine the roles played by the Greater Manchester Police, the Crown Prosecution Service and the CCRC in this miscarriage of justice. The non-statutory inquiry will work in communication with a current project of the Law Commission’s, a general review of the laws governing appeals from criminal convictions. There were failures at all levels of justice system in this case, and an inquiry should determine whether fundamental changes need to be made to the evidence disclosure procedure.