Independent review exposes systemic failures in CCRC’s handling of Andrew Malkinson case

On 26 July 2023, the Court of Appeal quashed Andrew Malkinson’s convictions for two counts of rape and one count of attempting to choke with intent to commit rape. Initially sentenced to life imprisonment on 30 March 2004, with a minimum term of seven years, Malkinson endured 17 years in prison and an additional three years under probation supervision. Throughout this time, he consistently maintained his innocence, sparking a prolonged 20-year legal battle and two unsuccessful appeals before his eventual exoneration.

Malkinson made three applications to the Criminal Cases Review Commission (CCRC) in 2009, 2018, and 2021, invoking its statutory powers to refer his case back to the Court of Appeal. While the first two applications were rejected, the third, submitted in 2021, led to a referral in January 2023 and culminated in a successful appeal in July of the same year. The appeal was represented by Edward Henry KC of Mountford Chambers.

Following this landmark ruling, the CCRC announced, on 21 August 2023, the appointment of a senior barrister to conduct an independent review of their handling of Malkinson’s applications. This review was intended to scrutinise the CCRC’s processes, identify failures, and recommend reforms to prevent future miscarriages of justice.

Review findings

The independent review conducted a thorough examination of the CCRC’s investigative methods, the quality of decision-making, and the time taken to process Malkinson’s applications. The review identified several critical failings:

Failure to Obtain Police Files

The review highlighted that the CCRC had repeatedly failed to obtain the police file during the reviews in 2009, 2018, and 2021. Had this file been accessed earlier, it might have significantly altered the outcomes at each stage of the review process.

Breaches in Identification Evidence

In the 2018 review, concerns were raised regarding the acquisition of identification evidence that breached Code D of the Police and Criminal Evidence Act 1984 (PACE). This oversight should have prompted a more detailed investigation into the matter.

Missed DNA Testing Opportunities

The CCRC missed key opportunities to secure comprehensive DNA results in 2009. Despite advancements in DNA testing techniques by 2018, the CCRC still failed to commission further tests that could have been crucial to Malkinson’s case.

Incorrect Attribution of Retesting Credit

In August 2023, the CCRC erroneously claimed full credit for retesting DNA evidence. In reality, the legal charity APPEAL had conducted the initial tests, identifying significant disclosure failures by the Greater Manchester Police (GMP).

Recommendations

To address the systemic issues identified in the review and to prevent similar miscarriages of justice, several recommendations were proposed:

Review of Past Cases

The CCRC should conduct a comprehensive review of previous cases where new DNA testing opportunities may be relevant. This approach could help identify and rectify other potential injustices.

Enhanced Staff Training

Regular and improved training for CCRC staff on assessing DNA evidence is essential to ensure that such errors do not recur.

Mandatory Written Explanations

The CCRC should implement a policy of providing written justifications when deciding not to obtain police files. This step would enhance transparency and accountability within the organisation.

Collaborative Approach

The CCRC should adopt a more collaborative approach with applicants and their legal representatives. This includes revisiting issues raised in previous applications and exploring new testing opportunities that could prove pivotal to a case.

Improved Oversight

The review recommends enhanced oversight within the CCRC, including regular face-to-face meetings, to monitor progress and address emerging issues promptly.

Increased Resources

Given the increasing caseload faced by the CCRC, additional government funding is essential. Despite recent budget reductions, the demand for the CCRC’s services continues to grow, necessitating increased resources to maintain its effectiveness.

Conclusion

The independent review of the CCRC’s handling of the Andrew Malkinson case exposes significant flaws within the organisation's procedures and underscores the urgent need for systemic reform. Implementing the recommendations outlined in the review is crucial for the CCRC to fulfill its mission of correcting miscarriages of justice and restoring public confidence in the criminal justice system. The lessons learned from this case must serve as a catalyst for change, ensuring that such failings are not repeated and that justice is duly served in future cases.