by A man who spent 17 years in prison after being wrongly convicted of rape has called for the head of the criminal review board to be sacked and stripped of his OBE.
Andrew Malkinson spoke out after his legal team discovered striking similarities between their own ordeal and an earlier case involving a man called Victor Nealon.
Both cases were based on identification evidence alone, with the presence of another man’s DNA in saliva on the victim’s clothing ultimately clearing their names.
They all applied to the Criminal Cases Review Commission (CCRC) to have their cases referred to the Court of Appeal, but were refused twice.
In Mr Nealon’s case, an internal CCRC review in 2013 found that the forensic evidence that led to his conviction could be found as early as 2003 – 10 years before he was finally freed.
He said: “The cellular material might have been found if the relevant test had been set in 2003, when this issue was reviewed for the second time.
“Also, testing that material could have yielded DNA profiles.”
Former postman Mr Nealon, who is in his 50s and originally from Dublin, was found guilty in 1997 of the attempted rape of a woman in Redditch, Worcestershire, and was jailed for 17 years – 10 years more than his seven-year minimum term. . he continued to assert his innocence.
His conviction was overturned by the Court of Appeal in December 2013 after new DNA evidence was received.
Mr Nealon applied to have his 1996 conviction reviewed by the CCRC in 1998 and 2002, but was refused, ultimately in 2010 after his lawyers commissioned a DNA test.
The 2013 CCRC review recommended that similar cases be trawled to identify missed opportunities in relation to DNA, but despite the parallels with Mr Malkinson’s case it was not re-examined.
A government-commissioned inquiry and an internal CCRC investigation are ongoing into the failings in Mr Malkinson’s case.
He said: “This report proves that the CCRC has been a major corporate failure, yet the company’s chairman, Helen Pitcher, refuses to apologize to me.
“She should be sacked and stripped of her OBE.
“Everyone can see that the failures of the CCRC have cost me additional years of suffering in prison for a crime I did not commit. A true leader would not withhold an apology until that is investigated.
“New scientific discoveries are made every day, but it didn’t even occur to the CCRC to use a new DNA breakthrough to save me and Victor Nealon years of wrongdoing.”
https://t.co/lpJG1LPoSj
We welcome the Court of Appeal’s decision today to overturn Andrew Malkinson’s convictions on the basis of new DNA evidence.
Thread on how the DNA ones meant we could refer his case for a third review, after two requests were rejected.
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— Criminal Cases Review Commission (CCRC) (@ccrcupdate) July 26, 2023
Mr Malkinson’s 2003 conviction was overturned last summer after years of protesting his innocence.
He applied to have his case reviewed by the Criminal Cases Review Commission in 2009, but at the end of its review in 2012 the Commission refused to order further forensic testing or refer the case for appeal, amid concerns about costs.
The second application in 2020 was refused.
The crucial DNA evidence had been available since 2007, but no matches were found on the police database at the time.
James Burley, an investigator for legal charity Appeal which obtained the CCRC Nealon report under Freedom of Information legislation, said: “This report shows that the CCRC has effectively failed to learn from its failure to properly investigate the wrongful conviction of Victor Nealon – and to Andy Malkinson paid the price in the form of extra years behind bars for a crime he did not commit.
“The report recommends that the CCRC review its handling of similar cases to see whether opportunities for DNA testing have been missed due to scientific progress. But this failed to encourage the CCRC to take advantage of new DNA techniques that could have freed Andy Malkinson years earlier.
“The CCRC report complacently concluded with a ‘high level of confidence’ that what happened to Victor Nealon could not happen again. But the CCRC failed Andy Malkinson in a strikingly similar way.”
A CCRC spokesman said the commission cannot “discuss in detail” the case while its own and the government’s inquiry is ongoing.
He continued: “Following the quashing of Mr Malkinson’s conviction, the CCRC commissioned an independent review of Mr Malkinson’s case, led by barrister Chris Henley KC, to understand the wider issues of the case.
“This review, together with the independent inquiry established by the Ministry of Justice, should provide the answers that Mr Malkinson and the CCRC seek.
“CCRC chair Helen Pitcher OBE has previously acknowledged the profound impact Mr Malkinson’s wrongful conviction has had on his life and the unacceptable time he has spent in prison for a crime he did not commit.
“She has offered to meet with Mr Malkinson once the Henley Review and independent inquiry have concluded.”
