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26 July 2023

The case of Andy Malkinson – what went wrong?

4 mins

Two decades ago, Andy Malkinson was convicted of rape; and sentenced to life in prison.

Mr Malkinson spent 17 years in prison during which he always protested his innocence.

His case was championed by APPEAL, a specialist legal charity dedicated to investigating miscarriages of justice, and following the charity’s work, in March 2021, new DNA evidence was identified that implicates another person.

Following the uncovering of the new DNA evidence, the Criminal Cases Review Commission (CCRC) referred his case to the Court of Appeal.

Today, the Court of Appeal has overturned Andy Malkinson’s conviction.

Katie Wheatley, partner at Bindmans and Head of our Crime, Fraud and Regulatory team, comments on the case and the issues of relying on eye witness evidence when making a conviction:

Andrew Malkinson’s successful appeal is a shocking reminder of what can go wrong in criminal trials and the many years it can take to correct miscarriages of justice. Andrew Malkinson’s extraordinary endurance and perseverance and the dogged determination of his lawyers at APPEAL have led to this outcome.

Andrew Malkinson’s case is a bitterly poignant reminder of the risks associated with eye witness identification evidence, which courts have long recognised can be unreliable. Safeguards include capture of all first descriptions provided by witnesses, scrutiny of the duration of observation, quality of lighting and view and any factors that may have influenced a witness’s recollection as well as strict adherence to authorised forms of identification procedure. However awful the crime, justice can never be served by a less than rigorous approach to such evidence during investigation and trial.

Because a mistaken eye witness can be convincing at trial, the judge must warn the jury of the special need for caution before convicting a defendant on the basis of disputed identification evidence.

It is surprising that Mr Malkinson was convicted on the basis of eyewitness identification without there being any DNA or other compelling evidence to connect him to the crime as such evidence might be expected to be present in a case of this nature. Defendants will invariably wish to examine the full details of any DNA sampling and analysis undertaken for the police and to have disclosure of all the relevant records before trial, and may choose to undertake their own analysis. It is also vital that exhibits and all DNA samples are retained after conviction for as long as there may be any possibility of an appeal so that retesting can be facilitated.  

APPEAL has stated that The Criminal Cases Review Commission referred the case to the Court of Appeal because of new DNA evidence, but that the CCRC also concluded that non-disclosure of evidence undermining the credibility and unreliability of two witnesses was supportive of the referral. The process of disclosure is integral to a fair system of justice. It is not only what the prosecutor relies on in evidence that matters, but also what it possesses but does not use. A full investigation will follow all reasonable lines of enquiry even if they don’t appear to fit a case theory. Disclosure obligations require the police to secure and preserve all relevant material and the prosecutor to disclose to the defendant any unused material that may undermine the prosecution’s case or assist the defence. The defendant can then decide for themselves whether they wish to rely on it at trial.

Further details of Mr Malkinson’s case and today’s ruling by the Court of Appeal are outlined by BBC News here.

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