The long road to reform after Andrew Malkinson’s exoneration

The consequences of Andrew Malkinson’s tragic case are and should be far-reaching for the entire justice system, which continues to suffer from chronic underfunding and neglect. Nothing can repair the damage done to Malkinson, who spent 17 years in prison for a rape he did not commit, despite always protesting his innocence and his supporters fighting tirelessly for years to overturn his conviction .

However, an independent investigation into the way in which the Criminal Cases Review Commission (CCRC) handled Malkinson’s case is both welcome and essential, if only to try to minimize the risk of other suspects having to endure such a devastating miscarriage of justice. This is especially important given that ten years before Malkinson was finally acquitted in July 2023, the CCRC had – and missed – an opportunity to review his conviction, following the quashing of a conviction of Victor Nealon for attempted rape.

After Nealon’s conviction was quashed, an internal CCRC report recommended the review of all other similar cases where opportunities for DNA evidence had been missed, as had been the case in the prosecutions of both Nealon and Malkinson. Yet the CCRC ignored the 2013 advice and refused to review Malkinson’s case, leading to him spending a further seven years in prison after his release and living under sex offender restrictions for a further three years. Malkinson was originally given a life sentence with a minimum of six and a half years, but remained in prison for a further ten years due to his refusal to admit offenses he had not committed in order to reduce his sentence.

The CCRC’s role in Malkinson’s two-decade ordeal was further cemented by the organization’s decision in 2009 not to review his case, despite the Crown Prosecution Service (CPS) recognizing there was DNA evidence found that linked another man to the victim’s rape, and that there was no DNA. evidence linking Malkinson to the crime. Following advice from the CPS not to re-investigate the case, the CCRC refused to review the conviction, citing “cost-benefit considerations” as the main reason for not taking further action.

CCRC role

The CCRC is a crucial part of the criminal justice system and is often the last resort for suspects who believe they have been wrongfully convicted and have exhausted their options for appeal. The CCRC, the only body that can refer cases to the Court of Appeal, has rejected Malkinson’s request for a referral twice – once in 2012 and again in 2020 – meaning he had to apply to the Court for a third time in 2021 CCRC. only referred the case after a suspect was arrested in 2022 in connection with the original crime.

In addition to the CCRC’s procedural shortcomings in handling Malkinson’s first two referral requests, which cast a dim light on the organisation, his case also reflects a long-standing problem of shortcomings in general disclosure that could have a serious impact on the security of convictions. The significant delay in filing an appeal due to the withheld DNA evidence reflects the urgent need for clarity within law enforcement and legal authorities to prevent future similar miscarriages of justice.

In 2018, attention focused on Liam Allan who, just before his trial on rape charges, discovered that there was crucial evidence that should have been made public, resulting in a collapsed trial and referring both the complainant and the accused. a process that should never have reached that stage. Just a few months before Allan discovered the evidence that led to his acquittal, HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate produced a joint report, which found that police officers almost routinely failed to record evidence in the correct disclosure categories.

Disclosure failure is often described as an age-old problem, and correct and clear disclosure is repeatedly cited as essential to protecting the right to a fair trial. Despite recognition of the problem and the severity of its impact on innocent individuals, there continues to be a seemingly incessant flow of cases that undermines confidence in the justice system. They also serve to underline the lack of serious efforts to tighten the disclosure process and crack down on the failure to disclose crucial evidence in such serious cases.

Internal assessment

In 2019, the CCRC published a report setting out its findings from an internal investigation it undertook in July 2018 to investigate how the police and CPS had handled disclosure in a specific sample of cases that the Commission had already considered as applications”. The agency ordered the review in response to the failure of several high-profile prosecutions of serious sexual offenses due to non-disclosure.

The body stressed that it was “more alert than perhaps any other organisation” to the impact of non-disclosure on the safety of a conviction, but nevertheless found that there was no evidence that its treatment policies had led to it failing to make disclosures about or that she had missed potential miscarriages of justice among the referral requests she had received.

They have given themselves a clean bill of health despite repeatedly refusing to review Malkinson’s case even though they knew of the existence of DNA evidence linking another suspect to the crime. It is therefore no wonder that their words and actions were and continue to be met with much skepticism, both within the legal profession and in the broader public arena.

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