by Andrew Malkinson has said the rollout of fresh DNA testing for contested rape and murder convictions should have happened a decade ago when the science first became available, a move that cost him years in prison.
Malkinson was cleared in an appeals court last year after serving 17 years in prison for a rape he did not commit in 2003. His acquittal came after new DNA testing linked another man to the crime.
The miscarriage of justice body for England, Wales and Northern Ireland, the Criminal Cases Review Commission (CCRC), announced on Monday that it would be re-testing DNA in rape and murder cases from before 2016 on he had previously refused to be referred to the court. appeal, and when DNA was an identification factor.
The timing of the announcement comes ahead of the publication of a major review of his handling of the Malkinson case, which is expected to be critical.
Malkinson told the Guardian: “This announcement is an implicit acknowledgment of what I have known for a long time: that there will be many innocent people like me who have been denied justice by the CCRC.
“CCRC should have launched this review 10 years ago, when the new DNA profiling technology became available. That failure – along with other failures in their handling of my case – forced me to spend additional years in prison for a crime I did not commit.”
A review of the CCRC’s work on his case led by Chris Henley KC is expected to be published in the coming weeks. It will examine, among other things, what opportunities the company has missed to overturn its conviction.
The Guardian revealed last year that police and prosecutors were aware in 2007 that forensic testing had found a searchable male DNA profile on the victim’s vest that did not match Malkinson’s image. But he spent another 13 years in prison. During that period the CCRC twice refused to refer his case for appeal, or to commission further forensic tests.
Malkinson was fired last year after fresh forensic work linked DNA on a sample of the victim’s clothing to the DNA of a male on the police database. He has repeatedly called for CCRC chairman Helen Pitcher to be sacked and given back her OBE for her role in prolonging his imprisonment.
Malkinson, now 58, said: “While I am pleased to see that public pressure has forced the CCRC to look again at closed cases, I have little confidence in the integrity of this review as long as the current leadership of the CCRC – still winning. Don’t apologize – he stays in charge.
“There is a need for root and branch reform of the CCRC, as well as a much wider search for wrongly rejected cases. The CCRC’s failure to properly investigate cases is not limited to simply missing DNA testing opportunities. In my case, they didn’t bother to get the police file – which had enough evidence to prove my innocence sitting there all along.”
In 2013, DNA evidence freed another man, Victor Nealon, from an attempted rape for which he wrongfully spent 17 years in prison. After that case, the CCRC said in an internal report that it should consider reviewing all similar cases, but no such review was undertaken for Malkinson. It took him another ten years to clear his name.
The CCRC now says it has re-examined nearly 5,500 cases it previously rejected in light of advances in DNA analysis techniques. He said last summer it was found that the identity of the offender had been challenged in about a quarter of the cases, and he would focus on those.
He believes DNA samples could be repeated in several dozen of these cases using more advanced techniques and is seeking additional funding from the government to do this as quickly as possible.
Malkinson and his legal team say the practice may have started in 2014 when a DNA-17 test was made available, putting Malkinson in prison for many more years.
Emily Bolton, Malkinson’s solicitor at the legal charity Appeal, said the announcement was “a stunning admission that, after missing opportunities for DNA testing in Andrew Malkinson’s case, the CCRC could deny justice to hundreds of other innocent people.”
However, she believes that the review is currently “too limited in scope” as it “will not include potential miscarriages of justice in cases of attempted murder and sexual assault, and it appears that it will not be looking at missed opportunities to using other powerful DNA techniques for example. Y-STR profiling.”
A CCRC spokesman said: “The CCRC has been in operation for more than 27 years and scientific advances mean that there may be new forensic opportunities in cases that we reviewed several years ago.
“This trawl is a significant task and the first we have undertaken on this scale. It may take a long time, requiring us to have significant additional resources so that we can balance this important work with our current case reviews.
“Our purpose is to find, investigate and report potential miscarriages of justice, so it is vital that we take advantage of opportunities presented by scientific developments to do so.”
