Wrongly jailed Andrew Malkinson ‘could have been freed 10 years earlier’

The Justice Secretary is looking to sack the boss of the Criminal Cases Review Commission (CCRC) after a review found wrongly jailed Andrew Malkinson was failed and could have been exonerated nearly a decade earlier.

Mr Malkinson, who spent 17 years in prison for a rape did he not commit, said the CCRC “obstructed my fight for justice and cost me an extra decade wrongly imprisoned”, as he called for a complete overhaul of the body and repeated demands for its chairwoman Helen Pitcher to be fired in light of the findings.

Justice Secretary Shabana Mahmood said Ms Pitcher was “unfit to fulfil her duties” and she was seeking her “removal from that position” in the wake of the report – news Mr Malkinson welcomed.

His 2003 conviction was quashed last summer after years protesting his innocence.

He and legal charity Appeal applied for his case to be reviewed by the CCRC in 2009 but at the conclusion of its review in 2012, the commission refused to order further forensic testing or refer the case for appeal amid concerns over costs.

A second application was rejected in 2020.

Crucial DNA evidence had been available since 2007 but no match was found on the police database at the time.

Last year officers arrested a new suspect on suspicion of the July 2003 rape after the discovery of the new DNA evidence in the case.

The 48-year-old man from Exeter has been released under investigation and Greater Manchester Police (GMP) said a file has been passed to the Crown Prosecution Service for consideration.

Chris Henley KC, who was drafted in by the CCRC to carry out the review, laid bare a string of “serious” failings and missed chances to correct the miscarriage of justice as early as 2009, including revealing the body had even considered rejecting requests for a referral to the Court of Appeal for a third time.

Making nine recommendations, he said the CCRC should review thousands of other cases and urged Government to give the body more funding as he set out a list of measures for improvement and to avoid repeat failings in future.

In his report, published on Thursday, Mr Henley said: “The CCRC failed him. It required Appeal to obtain the new DNA evidence that ultimately resulted in the further work that led to the referral by the CCRC. It would not have happened otherwise.

“The opportunity to have this case referred in 2009 was missed, and a further opportunity to look again at the DNA evidence when the second application was received in 2018 was not taken.”

Referring to Appeal’s later requests to re-test samples in 2019, he said: “I have seen nothing to persuade me that the CCRC would have independently considered that retesting was justified or had any prospect of producing anything new which might call into question the safety of the conviction.”

Mr Malkinson’s legal team previously discovered striking similarities between his ordeal and the earlier CCRC case of Victor Nealon, whose 1997 conviction was overturned by the Court of Appeal in December 2013 after new DNA evidence was unearthed.

Mr Nealon’s case “undoubtedly bore similarities to Mr Malkinson’s case”, Mr Henley said, adding: “In my view, Mr Malkinson’s conviction would have been quashed almost 10 years earlier than it was if the Nealon judgment had been properly understood and followed.”

Ms Mahmood described Mr Henley’s report as “sobering”, adding: “It is my firm view that Helen Pitcher is unfit to fulfil her duties as chair of the CCRC. I have therefore begun the process to seek her removal from that position.”

Mr Malkinson, who previously called for Ms Pitcher to also be stripped of her OBE, branded the CCRC “biased though and through”.

He said: “This report lays bare how the CCRC obstructed my fight for justice and cost me an extra decade wrongly imprisoned.

“I am very pleased that the Justice Secretary is seeking to sack Helen Pitcher, who proved herself utterly unfit to lead the CCRC.

“I hope this will be followed with a complete overhaul which transforms the CCRC into a body that delivers justice to wrongfully convicted people like me.

“Ms Pitcher’s discredited senior leadership team should also now go, and be replaced with people who are serious about fighting miscarriages of justice.”

James Burley, who led Appeal’s investigation into Mr Malkinson’s case, said the report was “utterly damning”, the CCRC was a “broken safety net” and Ms Pitcher’s removal from post would be a “real victory”.

“Appeal welcomes the Justice Secretary’s decisive action, and hopes it will be followed with root and branch changes, including bringing in a fresh leadership team”, he added.

Ms Pitcher offered Mr Malkinson an “unreserved apology” in April when she received the findings of the review and said it was “clear the commission failed Mr Malkinson”.

“For this, I am deeply sorry and wish to offer my sincere regret and an unreserved apology on behalf of the commission,” she said.

“Nobody can begin to imagine the devastating impact that this wrongful conviction has had on Mr Malkinson’s life, and I am deeply sorry for the additional harm caused by our handling of the case. On behalf of the commission, I offer my deepest regret.”

The CCRC said it had nothing further to add in light of the Justice Secretary’s comments.

Responding to the report, the body said “we will learn from the mistakes that were made”, adding: “Mr Henley’s recommendations will be acted upon, and work to address them has already started.”

But it would not say if any staff faced disciplinary proceedings in light of the failings.

Among his recommendations, Mr Henley told the CCRC to review all cases “with the possibility of DNA opportunities”.

The CCRC said it was focusing first on cases involving rape or murder convictions dating back prior to 2016 and had identified more than 6,700 applications equating to nearly 5,500 people. But added: “We anticipate that only a small proportion of those cases will be ones in which there are new forensic opportunities.”

A separate inquiry ordered by the previous Government into Mr Malkinson’s case is ongoing.