The long road to reform after Andrew Malkinson's exoneration

The fallout from the tragic case of Andrew Malkinson is, and should be, far-reaching across the entirety of the legal system, which continues to suffer from chronic underfunding and neglect. Nothing can repair the damage inflicted on Malkinson, who served 17 years in prison for a rape he did not commit, despite having always protested his innocence and his supporters fighting tirelessly for years to overturn his conviction.

However, an independent review into the Criminal Cases Review Commission’s (CCRC) handling of Malkinson’s case is both welcome and vital, if for no reason than to try and minimise the risk of any other defendant having to endure such a devastating miscarriage of justice. This is particularly important given that, a decade before Malkinson was finally exonerated in July 2023, the CCRC had – and missed – an opportunity to conduct a review into his conviction, following the quashing of a conviction of Victor Nealon for attempted rape.

After Nealon’s conviction had been overturned, an internal CCRC report recommended the review of all other similar cases in which DNA evidence opportunities had been missed, as had been the case in both Nealon’s and Malkinson’s prosecutions. Yet the CCRC ignored the 2013 report’s advice, and refused to carry out a review of Malkinson’s case, leading to his spending another seven years in jail and a further three years living under sex offender restrictions upon his release. Malkinson had originally been handed a life sentence with a minimum of six and a half years, but remained in jail for a further ten years due to his refusal to admit to offences he didn’t commit in order to shorten his sentence.

Compounding the CCRC’s role in Malkinson’s 20-year ordeal was the organisation’s decision in 2009 not to review his case despite the Crown Prosecution Service (CPS) acknowledging that DNA evidence had been found linking another man to the victim’s rape, and that there was no DNA evidence linking Malkinson to the crime. Following the CPS’s advice not to re-examine the case, the CCRC declined to review the conviction, citing “cost-benefit grounds” as their primary reason for taking no further action.

CCRC role

The CCRC is a pivotal part of the criminal justice system and is often the last avenue for any defendant who considers they have been wrongly convicted and has exhausted their options for appeal. The CCRC, as the only body able to refer cases to the Court of Appeal, turned down Malkinson’s application for referral twice – once in 2012, and again in 2020 – meaning that he was forced to apply a third time in 2021, with the CCRC only referring the case after a suspect was arrested in 2022 in connection with the original crime.

As well as the CCRC’s procedural failures in dealing with Malkinson’s first two applications for referral casting a dim light over the organisation, his case also reflects a long-standing issue of general disclosure failings which can have a serious impact on the safety of convictions. The significant delay for appeal resulting from suppressed DNA evidence reflects urgent need for clarity within law enforcement and legal bodies, in order to avoid future similar miscarriages of justice occurring.