by Interns have been tasked with securing possible wrongful convictions for rape and murder in a major case review that fueled the devastation of Andrew Malkinson, the Guardian can reveal.
The miscarriage of justice body the Criminal Cases Review Commission (CCRC) said last month it would be re-examining cases it had refused to refer to the appeals court to check new opportunities for DNA testing.
An internal CCRC board paper seen by the Guardian shows that its newly announced forensic trawling exercise has so far been completed by interns, who have begun the process of whittling down historical cases that could be sent for further DNA testing.
It has been said that the exercise has the potential to find other wrongful convictions that have lost the body. Emily Bolton, Malkinson’s solicitor at the legal charity Appeal, said: “Given the seriousness of this review, it is concerning that the work so far has been carried out mainly by interns.”
The paper also suggests that there are about 8,000 other serious possible miscarriages of justice that are not being considered because the CCRC has limited the scope of the exercise to rape and murder convictions.
Marked “official sensitive” and partially redacted, the board paper was written by the director of casework operations on March 8 and sent to Malkinson’s legal team following a freedom of information request.
Malkinson served 17 years in prison for rape in 2003 with no DNA linking him to the crime. He was freed last year after fresh forensic testing of a sample of the victim’s clothing was linked to male DNA on the police database.
CCRC was aware five years after Malkinson’s conviction that forensic review had yielded a searchable male DNA profile from the victim but refused to order further DNA testing and dismissed his case in 2012. Only progress was made after his legal team arranged for additional forensics. work themselves.
The CCRC’s announcement of the case trawl came ahead of the publication of a major review of its handling of the Malkinson case. The review, led by Chris Henley KC, was presented to the CCRC earlier this year. It is expected that he will be critical of the company and that an exercise similar to the one announced will be recommended.
The document also shows there are no plans to consult with forensic scientists until the final stage of the exercise, after their own caseworkers have decided whether forensic work could make a difference to the case.
A DNA expert whose early research led to the eventual breakthrough in Malkinson’s case questioned why there appeared to be no plans to consult forensic scientists in the early stages.
The development raises serious concerns about the possibility of cases being lost in the initial trawl. The guidance states that “members of the casework operations team” reviewed a “small sample” to develop guidance before the exercise was given to interns.
The CCRC said its interns were salaried members of staff who completed the Bar course before joining and typically stayed for more than a year before moving on to cadetship. He said he would recruit investigators for the later stages of the review process.
Professor Christophe Champod, the forensic scientist who demonstrated his pro bono work with a team at the University of Lausanne, said further DNA testing of key exhibits could free Malkinson: “After Andy[Malkinson]I can see that it might bother people to think that the CCRC itself will decide whether or not it is worth doing extensive forensic work. What really matters is the expertise brought to review these cases.
“I think this is something for a forensic scientist to do, even if it’s triage. I think you need DNA expertise, not just awareness.”
The CCRC trawl will look at all cases where a person was convicted of rape or murder before 2016 and where the body rejected their case. The year 2016 was chosen because after that the more sensitive DNA-17 test was widely used.
In the first phase, interns are checking more than 5,000 rejected rape and murder convictions for return to the appeals court and leaving out those they consider irrelevant. They are looking for cases where the identity of the attacker is at stake and will exclude those where, for example, arguments about consent or self-defense were the reason for the request.
So far, the interns have whittled down 912 potentially eligible cases to 270 and are now analyzing the rest.
Investigators will conduct a second step internally to identify cases where further DNA testing may be an option “based on the material available in our system.” Only these cases will be moved to stage three where work with forensic scientists may lead to further DNA testing.
Bolton, Malkinson’s solicitor, said: “For this exercise in miscarriage of justice to be effective the CCRC needs input from independent forensic scientists throughout the process. It cannot be left to non-scientists alone to identify potential forensic opportunities in these cases.
“The scope of the review also needs to be expanded significantly. This internal document recognizes that there are thousands of serious cases that will not be investigated even though there may be a DNA break. That can’t be right.
“The other limitation is that this review is entirely focused on identifying DNA opportunities that the CCRC may have previously missed in cases. However, we know from the Andrew Malkinson case that the CCRC also missed other lines of inquiry, including failing to review police files.
The brief acknowledges that there are thousands of previously rejected serious cases where the identity of the offender may be an issue but that will not be considered for new DNA testing as the current review is only focused on rape and murder cases.
The paper notes that expanding the scope of the review to other sex offences, violence against the person, burglary and robbery would add around 8,000 more cases and says that “concerns about the scope” of any trail are reasonable.
He adds: “If we are committed to miscarriage of justice, we need to think twice about our closed cases. However, the scale of such an exercise is cause for great concern.”
When asked about this, the CCRC said that “the most serious cases, those involving murder and rape, are currently being looked at” but did not rule out assessing other cases.
A spokesman for the CCRC said: “Step two is a preliminary assessment, and involves identifying situations where forensic evidence could make a difference. Step three would be a detailed consideration and would involve consultation with forensic scientists. At each stage, borderline cases will be included rather than excluded.”
