Solicitor Advocate Abigail Ashford explores the case of Andrew Malkinson in Solicitors Journal

Solicitor Advocate Abigail Ashford discussed the tragic case of Andrew Malkinson and its far-reaching impact on the entirety of the legal system.

Abigail’s article was published in Solicitors Journal, 23 April 2024, and can be found here. 

The fallout from the tragic case of Andrew Malkinson is, and should be, far-reaching across the entirety of the legal system, which continues to suffer from chronic underfunding and neglect. Nothing can repair the damage wrought on Malkinson, who served 17 years in prison for a rape he did not commit, despite having always protested his innocence and his supporters fighting tirelessly for years to overturn his conviction.

However, an independent review into the Criminal Cases Review Commission’s (CCRC) handling of Malkinson’s case is both welcome and vital, if for no reason than to try and minimise the risk of any other Defendant having to endure such a devastating miscarriage of justice. This is particularly important given that, a decade before Malkinson was finally exonerated in July 2023, the CCRC had – and missed – the opportunity to conduct a review into his conviction, following the quashing of a conviction of Victor Nealon for attempted rape.

After Nealon’s conviction had been overturned, an internal CCRC report recommended the review of all other similar cases in which DNA evidence opportunities had been missed, as had been the case in both Nealon’s and Malkinson’s prosecutions. Yet the CCRC ignored the 2013 report’s advice, and refused to carry out a review of Malkinson’s case, leading to his spending another seven years in jail and a further three years living under sex offender restrictions upon his release. Malkinson had originally been handed a life sentence with a minimum of six and a half years, but remained in jail for a further ten years due to his refusal to admit to offences he didn’t commit in order to shorten his sentence.

Compounding the CCRC’s role in Malkinson’s 20-year ordeal was the organisation’s decision in 2009 not to review his case despite the Crown Prosecution Service (CPS) acknowledging that DNA evidence had been found linking another man to the victim’s rape, and that there was no DNA evidence linking Malkinson to the crime. Following the CPS’s advice not to re-examine the case, the CCRC declined to review the conviction, citing “cost-benefit grounds” as their primary reason for taking no further action.

The CCRC is a pivotal part of the criminal justice system and is often the last avenue for any Defendant who considers they have been wrongly convicted and has exhausted their options for appeal. The CCRC is the only body able to refer cases to the Court of Appeal, meaning that its turning down twice of Malkinson’s application for referral – once in 2012, and again in 2020 – meant that he was forced to apply a third time in 2021, with the CCRC only referring the case after a suspect was arrested in 2022 in connection with the original crime.

As well as the CCRC’s procedural failures in dealing with Malkinson’s first two applications for referral casting a dim light over the organisation, his case also reflects a long-standing issue of general disclosure failings which can have a serious impact on the safety of convictions. The significant delay for appeal resulting from suppressed DNA evidence reflects urgent need for clarity within law enforcement and legal bodies, in order to avoid future similar miscarriages of justice occurring.

In 2018, attention was focused on Liam Allan who, just ahead of his trial on charges of rape, discovered that there was crucial evidence that should have been disclosed, and which resulted in a collapsed trial as well as put both the complainant and defendant through a process which should never have reached that stage. Only a few months before Allan discovered the evidence that led to his exoneration, HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate produced a joint report, which found that police officers were almost routinely failing to record evidence in appropriate categories of disclosure.

Disclosure failings are often described as an age-old problem, and proper and clear disclosure is perennially cited as essential to the protection of the right to a fair trial. Despite the acknowledgment of the problem and the seriousness of its impact on innocent individuals, there remains a seemingly ceaseless stream of cases which erode confidence and trust in the legal system. They also serve to highlight the lack of any serious efforts to tighten up the disclosure process and crack down on failures to disclose vital pieces of evidence in such serious cases.

In 2019, the CCRC published a report of its findings of an internal review which it “undertook in July 2018 to conduct a review of how disclosure had been handled by the police and the CPS in a specific sample of cases that the Commission had already considered as applications”. The body had commissioned the review in response to the collapse of several high-profile prosecutions of serious sexual offences due to non-disclosure.

Stressing that it was “more alert than perhaps any other organisation” to the impact of non-disclosure on the safety of a conviction, the body nonetheless found that there was no evidence that its casework policies had resulted in its overlooking disclosure failures, or that it had missed potential miscarriages of justice among the applications for referral it had received.

Their handing themselves a clean bill of health came despite its repeated declining to review Malkinson’s case even though it knew of the existence of DNA evidence linking another suspect to the crime. As a result, it is scant wonder that their words and actions were, and continue to be, met with a great deal of scepticism, both within the legal profession and in the wider public arena.

The independent review into their handling of Malkinson’s case – which was due to be completed by the end of 2023 but has now been delayed into the first quarter of this year – could go a long way to exposing institutional failings at the CCRC and beyond. If its findings act as a catalyst for long overdue reform and improvements to both evidence disclosure processes and the CCRC’s approach to applications for referral, then at least some good can come from Malkinson’s terrible 20-year ordeal.