A heroin addicted criminal as the main witness, a farcical ID parade and DNA evidence that would have exonerated him being ignored: PAUL BRACCHI reveals why the case of Andrew Malkinson is one of the most egregious miscarriages of justice you’ll ever read
During the early hours of July 19, 2003, a young woman found herself alone and at the mercy of a predator by the side of the M61 near Bolton. She had decided to walk home in the darkness following a row with her boyfriend.
But at 4.30am he received a chilling text message from her, saying a man had threatened her and shouted at her to ‘come into the bushes’ because ‘I have a gun pointed at your head’.
She was then stalked for nearly a mile, along the route of the motorway, before being grabbed from behind, throttled and left for dead.
The victim, a 33-year-old mother, scrambled down the embankment, bleeding and bruised, and after regaining consciousness tried to flag down passing cars.
Her cheekbone was broken, one eye was too swollen to open and a nipple was partly severed from a bite. She could not remember if she had been raped but a medical examination confirmed she had.
Who was the rapist? According to the police, it was Andy Malkinson, a security guard at a nearby shopping centre, who was arrested two weeks later. At his trial the following year, he was portrayed as a ‘monster’ who posed a ‘high risk’ to women. There was cheering from the public gallery when he was jailed for life.
Jobless and homeless: Andy Malkinson is staying with friends in Holland
Andrew Malkinson, who served 17 years in prison for a rape he did not commit, outside the Royal Courts of Justice in London, after being cleared by the Court of Appeal on July 26
Outside the courthouse in Manchester, the detective who led the investigation said his officers ‘had to rely on old-fashioned police work to catch Malkinson’. They did. But not in the way he meant.
Their old-fashioned approach, we now know, had more in common with the Life On Mars era of policing in the 1970s, which resulted in a string of notorious miscarriages of justice such as the Birmingham Six and Guilford Four.
What happened to Andy Malkinson was equally shocking in its own way.
Many of you will have seen his face on the TV news and newspaper front pages after he was cleared by the Court of Appeal last month after spending 17 years behind bars for a crime he didn’t commit. He was 38 when his cell door slammed shut behind him. He is 57 today.
Only now, though, has the full extent of the scandal, involving failings at every level of the criminal justice system, become apparent.
DNA evidence that could have potentially quashed Andy Malkinson’s conviction was discovered five years into his jail stretch, it was revealed this week.
The police knew about it. The Crown Prosecution Service (CPS) — over which Labour leader Sir Keir Starmer then presided — knew about it. The Criminal Cases Review Commission (CCRC) — the very body responsible for exposing miscarriages of justice — knew too.
It took a small legal charity called Appeal, which looked at the case in 2017, to uncover the truth.
‘There is a need for a statutory public inquiry into the role of all state agencies in my case,’ Mr Malkinson told the Mail. ‘This inquiry needs the power to compel disclosure, so that I can fully understand what went so wrong.’
It is hard to believe, given the shameful shortcomings which have already emerged, that such a Kafkaesque travesty could have occurred in modern Britain.
Mr Malkinson — who grew up in Grimsby, leaving school at 16 to work on the docks — was nothing more than a convenient fall guy. His itinerant lifestyle, having just returned to Britain after ten years abroad, made it easy for the prosecution to paint him as a bit of a loner and a drifter.
SPECIAL INVESTIGATION by Paul Bracchi
On the night of the rape, he was staying with a colleague who worked in security with him at the Ellesmere shopping centre in Walkden, a mile from where the victim was attacked. The colleague said he could not remember much about the evening and could not say if Andy spent all night on the sofa downstairs because he was asleep upstairs.
So, in the police’s eyes, Malkinson did not have an alibi that would stand up in court.
But he had no convictions for violence. Apart from incurring a fine for breaking a pane of glass as a teenager and committing a passport offence while backpacking in Thailand in 2001 — misdemeanours not exactly indicative of a sexual predator — he had a clean record.
Nevertheless, Mr Malkinson, who protested his innocence from the outset, became the prime and only serious suspect because two PCs remembered his face from pulling him over for riding on the back of an off-road motorbike the previous month and thought it matched the description of the rapist.
Yet from the start, there was a mass of conflicting ‘evidence’.
THE INCONSISTENCIES
The victim said she left a ‘deep scratch’ on the rapist’s right cheek with her left hand shortly before she fell unconscious. Mr Malkinson did not have any scratches when he reported for work the next day.
She said the attacker was about 5ft 8in. Mr Malkinson is nearly 6ft.
The victim said the rapist had a local Bolton accent but Mr Malkinson grew up nearly 100 miles away in Grimsby and had spent much of the previous decade in Holland.
The attacker was smartly dressed. Mr Malkinson typically wore scruffy shorts and T-shirts. None of the clothes described by the victim were found where Andy was staying.
The attacker took off his shirt during the assault. He had no chest hair. Mr Malkinson has chest hair and prominent tattoos on his arms. The victim made no mention of tattoos.
But on August 2, a fortnight after the rape, Andy was arrested.
Flawed i.d. parade
Shortly afterwards, the victim and a so-called witness were brought to a late night video line-up. What followed was reminiscent of a scene from a thousand TV police dramas.
Victim and witness were driven to the station in the same car, a clear breach of identity parade guidelines, because of the obvious risk of the witness influencing the victim and vice versa.
It was not the only breach. The victim picked out Andy Malkinson even though he did not match the description she gave to the police, but the witness chose another man before leaving the room with a police officer, then returning to identify Andy Malkinson as the rapist.
DODGY WITNESSES
The witness’s partner also picked him out six months later. They were in a car on the fateful night, he said, and claimed they recognised Andy Malkinson having seen him in a darkened street in the vicinity of the M61 through the window of the vehicle.
The whole case hung on their testimony. Their integrity was never questioned. Indeed, the judge stressed they were honest.
But evidence uncovered by Appeal showed the pair had 16 convictions for 38 offences between them, including offences for dishonesty, which were not disclosed to the jury. The couple only came forward after police began calling their sources for help in the case.
At the time of the ID parade, the male witness, who was also a long-term heroin addict, was facing charges of motoring offences, for which he was said to have received lenient penalties.
MISSING PHOTO
The victim said she had broken her fingernail inflicting that ‘deep scratch’ on the rapist’s cheek before passing out. A doctor testified (incorrectly) that the nail was not broken, leading the judge to raise the possibility that she could have misremembered the scratch, which left the jury in doubt.
But Greater Manchester Police had a photograph supporting the victim’s account, showing she did have a broken fingernail. Again, this was not disclosed to the jury.
Andrew Malkinson’s half-sister Sarah, hugs her brother after he was cleared
Andy Malinson’s mother Tricia outside the courts after her son was cleared of a rape he did not commit
IGNORED DNA
During the attack, the victim had suffered a bite mark which partly severed her nipple and left saliva staining on her vest above the left breast. DNA samples recovered from this item of clothing were preserved in an archive.
In 2007, a nationwide review of the forensics in historic rape and murder cases was undertaken.
Fresh testing, following scientific advances, found that the DNA on the top did not belong to the victim’s then boyfriend, nor did it match Andy Malkinson’s profile.
An internal log of a meeting between the police and prosecutors revealed they realised the significance of the discovery. ‘If it is assumed that the saliva came from the offender, then it does not derive from Malkinson,’ said the then head of the CPS’s complex case work in Manchester. ‘This is surprising because the area of clothing [above her left breast] that the saliva was recovered from was crime specific.’
However, he said ‘he did not see that there was a need to do any further work on the file’ unless the case was brought to appeal, and then his focus would be on ‘bolstering’ the case against Malkinson. The document, among a cache of case files released to his legal team at Appeal as he fought his conviction, paints a damning picture of a justice system that was prepared to ignore evidence that, potentially, allowed an innocent man to remain in prison and a guilty man to remain at large.
The CPS is supposed to write to the Criminal Cases Review Commission at the earliest opportunity about any case in which there is doubt about the conviction.
WHAT PRICE JUSTICE?
The CCRC only became aware that there was ‘crime-specific’ DNA that was not a match for Andy Malkinson in 2009, but it did not consider this fact worthy of a referral to the Court of Appeal.
In 2012, his case was dismissed for the second time because there was ‘no realistic prospect’ that further testing would yield a searchable profile ‘capable of being compared with the national DNA database’. But the CPS had already been informed by scientists that it was ‘searchable’.
Either way, didn’t the CCRC have a duty to put the new evidence — that traces of DNA from another man had been found on the victim’s vest — before the Court of Appeal?
The grossly underfunded CCRC told Mr Malkinson the cost of an investigation was not ‘its overriding consideration’. The internal case log, though, includes comments such as ‘the cost cannot be ignored’ and ‘further work would be extremely costly’.
Further work was carried out by Appeal and, in 2019, DNA on the victim’s vest was matched to another man on the database.
The 48-year-old, who lived near the scene of the rape and can be identified only as ‘Mr B’, was arrested in Exeter. He has been interviewed twice and a file has been sent to the CPS.
In 2020, the CCRC dismissed Mr Malkinson’s application for the second time.
He was released from prison in the same year for good behaviour. He would have been freed much sooner but for his steadfast refusal to admit his guilt.
Assistant Chief Constable Sarah Jackson (pictured) issued a public apology after Andrew Malkinson’s acquittal
THE COMMISSION
The miscarriage of justice watchdog, which is now carrying out a review of its own performance, only decided to refer the case to the Court of Appeal in January.
Mr Malkinson’s conviction was finally quashed last month on three grounds: the new DNA evidence, the crucial photograph showing the victim’s broken nail and the previous convictions of the supposedly reliable and upstanding witnesses.
All of this was uncovered by the campaigning legal charity Appeal.
‘Andy has been calling for an external, independent review of the CCRC’s handling of his case since his conviction was overturned and more than 144,000 people have backed his petition on this,’ said Emily Bolton, Appeal founder and director. ‘We are pleased Andy’s request for an independent review has been heard.
‘However, the CCRC’s announcement comes without an apology from that body’s chair [Helen Pitcher]. If she is waiting for the outcome of an independent review, which could take many months to complete, it is clear she does not recognise the very obvious failings in this case.’
Today, Andy Malkinson is jobless and homeless and staying with friends in Holland.
‘I was 38,’ he says. ‘I am 57 now. Those years are gone.’
Additional reporting: TIM STEWART
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