Anyone involved in a criminal trial process will seek to play out the crime in their mind’s eye in a bid to determine what actually happened. With the proliferation of CCTV it is becoming more and more common that criminal trials involve seeing, at least to an extent, what actually did happen.
In Andrew Malkinson’s case there was no helpful CCTV. Ring doorbells had not been invented in 2003 and we were still some way off having a camera on almost every street corner. The case against him therefore relied upon one of the most unreliable ingredients in the criminal trial process, that is human beings. Some of those humans were civilian and some were not.
Time and again advances in DNA technology have proved unambiguously and unequivocally that humans can be just wrong, whether advertently or inadvertently. If there is no trace of a convicted person’s DNA in a crime specific place and it’s not attributable to the victim, police or other identifiable innocent then even a child is capable of inferring the significance of such a discovery.
That kind of DNA evidence is a wrapped present, a cake with the cherry on top and an easy, easy win delivered on a silver salver to any appeal body. Although I pause on that word win. Criminal justice is not football. Prosecutors that become fixated on wins and losses are in real danger of caring about results at the cost of the integrity of the process. And if the process is flawed the results are worthless, however glittering they may appear. The same is true for a statutory body charged with examining the safety of convictions.
In plain English Andrew Malkinson’s DNA was not found ANYWHERE in the samples taken in his case. The DNA of ANOTHER man was. That DNA was found in an obviously crime specific location and yet the CCRC took the view, for years, that the human evidence leading to the conviction was safe and sufficiently safe such as to render the DNA evidence irrelevant for the CCRC’s one purpose, which is to decide whether to send a case back to the Court of Appeal to look again. That decision was as inexplicable as it was wrong as it was enraging. You do not need to be a lawyer to discern that.
When I was asked to advise in Malkinson’s case in 2020 I was specifically asked to bring to bear my experience of prosecuting and what I found was the wrongest case I have ever dealt with. Chris Henley KC’s uncompromising report on the CCRC’s handling of the case makes plain that there were many people that clearly did not share that perception. Strip the fresh DNA evidence out of this case and I would bet my house and every penny I have earned in 20 years of practice that Andrew Malkinson would remain convicted still.
And yet it was not DNA evidence that led to Malkinson’s conviction. One of the charges levelled against the CCRC is corporate incuriosity. I would suggest that if your job is scrutinising whether convictions are arguably wrongful curiosity is the most fundamental of necessary qualities. An enquiring mind, a preparedness to drill into the prosecution case theory to see whether under the surface it’s pure gold or a rancorous cesspit of unreliable evidence, a willingness to take the police and prosecution to task and hold them to account is the least I would be looking for. At least look at the police files!
No doubt there are some rightly convicted people making applications to the CCRC but if the corporate attitude is to assume convictions are safe then the wrongly convicted won’t get a look in, as Andrew Malkinson did not for such a disgracefully long time. They say hard cases make bad law but a corollary of that should be that bad cases should lead to hard action. If we sit by and shrug at what happened to Andrew Malkinson we accept that the CCRC is part of the disease and not part of the cure.
Here are some links for those with an interest in the case and miscarriages of justice generally:
First, watch the powerful BBC documentary about the case The Wrong Man: https://www.bbc.co.uk/iplayer/episode/m001zywl/the-wrong-man-17-years-behind-bars
You can listen to Seventeen Years, the podcast about the case: https://shows.acast.com/seventeenyears
You can watch the entire appeal proceedings here: https://www.youtube.com/watch?v=0lCRwDv8scs
You can watch a lecture that James Burley, investigator at APPEAL, and I gave on the case: https://www.youtube.com/watch?v=nR53-0FePWs
Read Emily Dugan’s reporting in the Guardian on Chris Henley’s findings: https://www.theguardian.com/law/article/2024/jul/18/catalogue-of-failures-watchdog-missed-chances-to-help-andrew-malkinson-report-finds
Finally, equipped with that information, read the report itself: https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/5/2024/07/Integrated-Report-Response-Redacted-Copy.pdf
Very lastly if you want to support the work of APPEAL you can here: https://appeal.org.uk/donate/#:~:text=APPEAL%20is%20a%20small%20and,a%20fair%2C%20accountable%20justice%20system.
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