Criminal review body missed chance to clear Andrew Malkinson in 2013

The organisation responsible for investigating miscarriages of justice missed a major opportunity to reconsider Andrew Malkinson’s case, internal documents suggest.

Malkinson, who spent 17 years in prison for a rape he did not commit, is today calling for the chair of the Criminal Cases Review Commission (CCRC), Helen Pitcher, to be sacked and to return her OBE after the latest revelations in his case.

In 2013, DNA evidence exonerated a different man, Victor Nealon, of an attempted rape that he also wrongly spent 17 years in prison for. After that case, the CCRC said in an internal report seen by the Guardian that it should consider reviewing all similar cases.

Malkinson and Nealon’s cases were strikingly alike, yet no such review was undertaken for Malkinson – and it took another decade to clear his name.

Malkinson was convicted of the rape of a woman in Salford in July 2003. There was never any DNA linking him to the crime and he was exonerated last year after fresh forensic work linked DNA on a sample of the victim’s clothing to male DNA on the police database.

As with Malkinson’s case, the CCRC twice refused to refer Nealon’s case back to the court of appeal without conducting its own DNA testing. Both convictions relied solely on eyewitness evidence and were only overturned after the men’s lawyers commissioned forensic work.

The 2013 “lessons learned review” of the Nealon case by the CCRC, released under freedom of information laws to Malkinson’s legal team, called for the body to conduct a “trawl for similar cases” where DNA evidence opportunities had been missed. Yet no fresh tests were made in Malkinson’s case.

The latest evidence has prompted Malkinson to call on Pitcher to be removed from her post and to return the OBE she was awarded in the 2015 Queen’s birthday honours list for services to business.

Pitcher was in charge when the CCRC refused his second application in 2020 – again without ordering fresh forensic testing.

Malkinson, who turned 58 on Tuesday, said: “This report proves there has been a serious corporate failure at the CCRC, yet the body’s chair, Helen Pitcher, still refuses to apologise to me. She should be sacked and stripped of her OBE.

“New scientific discoveries are made every day, yet it did not even occur to the CCRC to use new DNA advances to spare myself and Victor Nealon extra years wrongly imprisoned.”

The CCRC’s report on Nealon’s case claimed that forensic awareness among casework staff had increased, giving them a “high degree of confidence” that DNA testing opportunities would not be missed in future.

Nealon received a letter of apology in 2014 from the then chair of the CCRC, Richard Foster, for its handling of the case. Foster assured Nealon: “We are doing what we can to prevent anything similar happening in the future.”

Nealon’s solicitor, Mark Newby, said: “He said they would learn lessons but plainly they never did.”

The late investigative journalist Bob Woffinden wrote an article in 2014 urging the CCRC to apply the lessons of Nealon’s case to Malkinson’s. Yet in internal records, the CCRC concluded there was no “reasonable basis for exploring further testing”.

The CCRC knew by 2009 that there was DNA not matching Malkinson on a crime-specific area of the victim’s clothing, yet did not conduct further testing until his legal team commissioned their own forensic tests.

James Burley, the investigator at Appeal who obtained the internal report, said it revealed that “the CCRC effectively learned nothing from its failure to properly investigate Victor Nealon’s wrongful conviction – and Andy Malkinson paid the price in the form of extra years behind bars for a crime he did not commit”.

“[It] complacently concluded with a ‘high degree of confidence’ that what happened to Victor Nealon could not happen again. Yet the CCRC failed Andy Malkinson in a strikingly similar way,” he added.

A man was arrested for the 2003 rape and released under investigation in December 2022. A spokesperson for Greater Manchester police said: “Senior detectives are continuing to lead a live investigation. Securing justice for the victim remains the priority in this case.”

An independent review of the CCRC’s handling of Malkinson’s case is being led by Chris Henley KC as well as an independent inquiry established by the Ministry of Justice.

A spokesperson for the CCRC said that while the review and inquiry are continuing “it would not be appropriate for us to engage in a detailed discussion as we are committed to maintaining the integrity of the inquiry process and to preserving the impartiality of the conclusions drawn in the Chris Henley review”.

They added that Pitcher “has previously acknowledged the profound impact that Mr Malkinson’s wrongful conviction has had on his life and the unacceptable time he spent in prison for a crime he did not commit” and has offered to meet him once the review and inquiry have concluded.