A 57 year old man, Andrew Malkinson, who served 17 years in prison for a rape he did not commit has been cleared by the Court of Appeal.
Malkinson, was found guilty of the 2003 attack on a woman in Greater Manchester, UK, and the following year was jailed for life with a minimum term of seven years.
Malkinson had since then remained in prison for an extra 10 years as he maintained that he was innocent.
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However, he was today, July 26 cleared at the Court of Appeal.
Overturning his convictions, for two counts of rape and one of choking or strangling with intent to commit rape, Lord Justice Holroyde said Malkinson could ‘leave the court free and no longer be subject to the conditions of licence’.
At the time of Malkinson’s trial, there was no DNA evidence linking him to the crime and the prosecution case against him was based solely on identification evidence.
The Crown Prosecution Service (CPS) had previously conceded Malkinson’s conviction was unsafe because new DNA evidence points to another man.
Reading a statement to journalists outside the Royal Courts of Justice, Andrew Malkinson criticised Greater Manchester Police for failing him in the case.
He said, “Since I was arrested in 2003, the police, the prison system and probation service have been calling me a liar, because I denied that I committed the crime.
“I am not a liar. I am not in denial but I will tell you who is: Greater Manchester Police are liars, and they are in denial.’
“On August 2 2003 I was kidnapped by the State. It has taken nearly 20 years to persuade my kidnappers to let me go.
“Seventeen years, 4 months and 16 days of that time were spent in prison.
“At every parole hearing I sat before a panel who shook their heads at me, considering me to be dangerous – and all that time the real perpetrator, the real dangerous person, was free.’
The suspect can only be identified as Mr B, and the court heard there ‘must now be a real possibility’ he will be charged over the attack.
However, Malkinson’s legal team also wanted the court to overturn his conviction on additional grounds, which his lawyer, Mr Henry summarised as ‘deplorable disclosure failures which mostly lay at the door of the Greater Manchester Police’.
According to the barrister, these failings, which were only uncovered 15 years after his conviction, meant Mr Malkinson did not receive a fair trial in 2004 and frustrated his previous challenge at the Court of Appeal in 2006.
Mr Henry told the court there was a ‘realistic possibility at trial that he would not have been convicted’ or that his appeal would have been successful in 2006.
He told Lord Justice Holroyde and the other two judges hearing the appeal: ‘(There were) grave and repeated disclosure failures during those proceedings that undermined any prospect of a fair trial.
“In more than one sense this is an historic case, but also an historic injustice.”
The lawyer argued that police photographs, taken within hours of the attack but only disclosed in boxes of case documents years later, supported the victim’s evidence that she scratched her attacker and broke a nail on her left hand.
Had they been disclosed before Mr Malkinson’s trial, he argued, they would have corrected the evidence of a doctor who wrongly said the broken nail was on the victim’s right hand, and the trial judge would therefore not have directed the jury that they could ‘exclude’ the victim’s evidence about that if they were sure she was mistaken.
He said in written arguments the failure to disclose the photographs ‘deprived’ Mr Malkinson of his ‘strongest defence point – his lack of any facial injury’.
Mr Henry said he wanted to ensure ‘the widest possible vindication’ for Mr Malkinson, but also to ‘prevent others from suffering the same fate in future’.
Lord Justice Holroyde told Mr Malkinson’s legal team ‘crucial’ material that was not disclosed at the time of his trial ‘raised a number of substantial and important points’ and the court give a decision on them later in writing.
He added: “However, we must keep Mr Malkinson waiting no longer to know the outcome of his appeal.”
At the preliminary hearing in May, Edward Henry KC, representing Mr Malkinson, told the court the Criminal Cases Review Commission (CCRC), which investigates possible miscarriages of justice, had been aware since 2009 that there was ‘crime-specific’ DNA which was not a match for either Mr Malkinson or the victim.
However, he said at that time the CCRC ‘did not consider it tipped the balance towards a referral’ to the Court of Appeal.
In October last year, the sample was found to be a partial match for another man, identified as Mr B.
Mr Malkinson previously applied twice for his case to be reviewed by the CCRC but was turned down, eventually being released from prison in December 2020.
After his release, advancements in scientific techniques allowed his legal team, supported by legal charity Appeal, to provide new DNA analysis that cast doubt on his conviction to the CCRC.
The body then commissioned its own testing which found that DNA from the victim’s clothing matched another man on the national police database.
In a statement after the CPS and GMP announced their decision, Mr Malkinson said: “I’ve suffered incalculably for the last 20 years as a result of my wrongful conviction, and I continue to suffer each day.
“I have always known I am innocent. Finally, the prosecution has acknowledged my conviction should not stand.
“Of course, it is still the Court of Appeal’s decision to grant me justice. I sincerely hope they will give serious consideration to the disclosure failures which denied me a fair trial.
“The police must be made accountable – no-one should have to suffer what I’ve been through.”
Addressing the victim of the rape he was accused of, Andrew Malkinson said: “I am so sorry that you were attacked and brutalised that night by that man. I am not the person who attacked you, but what happened to me is not your fault.
“I am so sorry if my fight for the truth, as I knew it to be, has caused you extra trauma. I am so sorry that the system let you down. It let us both down.
“There are no winners in a wrongful conviction case with the exception of the real perpetrator. Everyone gets failed, from the original victim to the wrongfully convicted person.
“I sincerely hope that you are receiving the support you need and the apology from the police that you deserve.”
