A piece in today’s Sunday Times:
A man who spent 17 years in prison for rape and maintained his innocence is a step closer to clearing his name after a fresh DNA breakthrough in his case.
Andrew Malkinson was convicted of raping a 33-year-old mother left for dead on a Manchester roadside in the middle of the night in July 2003.
There was never any forensic evidence against him and his conviction depended on an identity parade and testimony from witnesses whose criminal pasts were hidden from the court.
Malkinson, 55, who was 37 when he went to jail, was released from prison last December for good behaviour. He was locked up for ten years beyond his tariff because he refused to admit to the crime.
Greater Manchester police (GMP) have now admitted that they misled the court by presenting two key witnesses, a couple, as honest. In fact, they had 16 convictions for 38 offences between them. They claimed they were able to identify Malkinson having seen him on a dark street in the middle of the night. [J4MB emphasis]
Despite this, GMP continue to spend public money fighting Malkinson’s lawyers in the courts to prevent more information being revealed about the witnesses and their interaction with police. The couple came forward to say they were witnesses shortly after police put out a call to their sources, raising the possibility that they were police informants.
“I’ve always known I’m innocent … I’ve waited a long time for the science to catch up and finally it has,” Malkinson said. He added: “It’s a terrible position to be in when it’s your word against someone else’s, because you just look guilty by the mere fact you’ve been accused … A year in prison is not like a year outside it. Every day drags and it’s just psychologically demanding.”
Last week a High Court judge ruled that there had been an “arguable error in law” over GMP’s refusal to disclose more information about the witnesses and granted permission for a judicial review.
Malkinson’s last serious girlfriend, a Dutchwoman called Karin Schuitemaker, has always insisted it was impossible that Malkinson could have committed the crime. They were together for four years until 1999 and while he was in prison she wrote to officials in the UK begging for the case to be looked at again.
She said: “From the beginning I didn’t have any doubts at all. It didn’t fit him in any way. Nothing fitted his personality. He’s a very gentle person … a pacifist.”
Last year The Sunday Times revealed that fresh forensic analysis found male DNA on samples taken from the victim and her clothing that did not match Malkinson’s. To prove his innocence, however, his lawyers needed to eliminate the possibility that the DNA might belong to the victim’s boyfriend at the time.
Now fresh samples taken from the boyfriend by GMP have revealed he is not a match. Malkinson’s lawyers say the development proves the woman’s attacker must be at large and that Malkinson’s conviction is a grave miscarriage of justice.
A spokeswoman for GMP said: “As a formal complaint has been registered with our professional standards branch in relation to the actions of officers at the time of Mr Malkinson’s trial, it would be inappropriate to comment further at this time. We will of course co-operate with any further review of this case which may be conducted by the Criminal Cases Review Commission.”
After an e-fit of the attacker was published in the local press, the public sent in names of suspects. The trial judge, Michael Henshell, noted that many names were put forward to the police during the investigation and some “were never traced, including … more than one who had previous convictions for rape”.
A jury at Manchester crown court convicted Malkinson in 2004 by a majority of 10 to 2. The victim had told the court she was “more than 100 per cent certain” that he was her attacker after she picked him out of an identity parade. No other suspects were put forward in the parade although he did not match her description of her assailant.
The victim said the man who raped her was 5ft 8in at most but Malkinson is 5ft 11in. She said she left a “deep scratch” on her attacker’s cheek but Malkinson was not seen with one. She also said he had a local Bolton accent “with a tinge of something else” but Malkinson grew up in Grimsby, Lincolnshire, and had just arrived in the area. [J4MB emphasis]
The breakthroughs in Malkinson’s case have come after it was taken on by Appeal, the miscarriages of justice charity and law practice. Emily Bolton, Malkinson’s lawyer and the director of Appeal, said: “The DNA results are clear: another man was responsible for the crime for which Andy Malkinson spent over 17 years wrongly imprisoned.
“This is not simply a matter of justice, but also of public safety. That money would be better spent trying to bring to justice the real perpetrator of this violent crime, who may still be at large.”
For Malkinson to clear his name there is a long process ahead. His initial appeal failed which means he can overturn his conviction only if the Criminal Cases Review Commission (CCRC) refers the case back to the appeal courts — something it has twice refused to do.
The CCRC, which is supposed to investigate miscarriages of justice, never ordered further DNA testing as science progressed, despite the lack of forensic evidence against Malkinson in the case. [J4MB emphasis]
Assuming his conviction is overturned, compensation from the Ministry of Justice is not taken for granted. Since a change to the law in 2014, applicants must demonstrate innocence “beyond reasonable doubt” to qualify.
Victor Nealon, whose case was similar to Malkinson’s, was not paid compensation. Nealon spent 17 years in prison for attempted rape and his conviction was overturned in 2013 after new DNA evidence pointed to another attacker. After losing a case in the Supreme Court over compensation, he is taking the case to the European Court of Human Rights. Nealon has not received a penny so far.
A CCRC spokesman said: “The overriding concern here must be for Mr Malkinson’s representatives to send to us any new evidence that they have so that we can look at it in the context of the case and make a decision about whether or not we can send it to the Court of Appeal.
“It may be that significant new evidence has now come to light, but we are confident that our earlier reviews of this case were detailed and thorough based on the information we had at the time.”
Malkinson developed type 1 diabetes in jail and contracted Covid-19 on New Year’s Day, days after being released. At the end of January he moved to Grimsby near his mother, Tricia. He would not have chosen to return to his home town but those were his bail conditions.
He is desperate to travel but as a convicted sex offender he would have to notify the police. “I’m not free. I’m not in jail but I’m certainly not free,” he said.
You can subscribe to The Times here.
Our last general election manifesto is here.
If everyone who read this gave us £5.00 – or even better, £5.00 or more, monthly – we could change the world. £5.00 monthly would entitle you to Bronze party membership, details here. Benefits include a dedicated and signed book by Mike Buchanan. Click below to make a difference. Thanks.
Nobody connected with J4MB has ever drawn any personal income from the party’s income streams. If you’d like to support Mike Buchanan financially, you can do so via his Patreon account or through Bitcoin, his account address is 1EfWxqDAtgJDCR3tVpvVj4fXSuUu4S9WJf . Thank you.