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Top lawyer blasts Andrew Malkinson rape case as the 'worst miscarriage of justice of the 21st century'

16 August 2023, 16:09 | Updated: 16 August 2023, 16:17

Lord Edward Garnier has called for a public inquiry into Andrew Malkinson's case
Lord Edward Garnier has called for a public inquiry into Andrew Malkinson's case. Picture: Alamy

By Asher McShane

Former solicitor general Lord Edward Garnier KC has called for a public inquiry to establish how a man spent 17 years in prison for a rape he did not commit.

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Lord Garnier told Tom Swarbrick that the case of Andrew Malkinson is "probably the worst miscarriage of justice of the 21st century."

He said there is an “urgent public interest” in establishing the failings in the case and “making sure it doesn’t happen again.”

Lord Garnier told LBC: “I think this is probably the worst miscarriage of justice of the 21st century.

Listen to the full interview on Global Player

"Information about the miscarriage of justice has been coming out in dribs and drabs over the last 15 or so years since Mr Malkinson and his team first took this to the CCRC (Criminal Cases Review Commission).

"We now know that things were going on in 2007, two or three or four years after he was convicted - again in 2009, again in 2012 and again in 2018… there’s a whole host of things which have come to light over this period which demonstrates an urgent public interest in getting to the bottom of this and making sure it doesn’t happen again.

"It’s the activities of Greater Manchester Police in failing to hold essential forensic evidence.

"I believe the vest in question has now been lost or destroyed and also the CPS which, although it was aware of the information relating to the DNA on the victims’ vest decided it was not something they needed to do anything about.

"There’s just so much that has gone wrong in this case which is not only shocking but an affront to public decency.

"It seems to be the only way to get to the heart of this and to make sure it doesn’t happen again is for someone of independence and stature to hold a public inquiry.

"We need the disinfectant of publicity in this matter… so that nobody else falls into this hideous trap.”

It emerged today that police knew that another man's DNA was on the clothes of a woman Mr Malkinson was falsely jailed for raping 13 years before he was released from prison.

Mr Malkinson, 57, was falsely found guilty of raping a woman in Greater Manchester in 2003 and was jailed for life with a minimum term of seven years. He served a further ten years because he maintained his innocence throughout.

He was released after 17 years in 2020, and his conviction was overturned in July after another man was linked to the crime by DNA.

Mr Malkinson obtained files that showed police officers and prosecutors knew had found a searchable male DNA profile on the vest of the rape victim that did not match his own.

The police didn't take any further action and there is no record that they told the Criminal Cases Review Commission (CCRC), which investigates possible miscarriages of justice, according to a report in the Guardian.

Read more: 'I've suffered incalculably': Innocent man who spent 17 years in jail for rape he didn't commit finally cleared

Read more: 'Prison is hell even if you're guilty': Man wrongly jailed for rape tells LBC of 17-year ordeal behind bars

Tom Swarbrick speaks to Andrew Malkinson after his rape conviction was quashed after 20-year fight

The CCRC did not get more forensic tests or refer the case for appeal in 2012. Information in the case files suggest it was worried about costs.

The CPS understood how important the 2007 DNA find could be, according to the minutes of a meeting between them, the Forensic Science Service, the CPS and Greater Manchester Police (GMP) in December 2009.

The CPS "must write to the CCRC at the earliest opportunity about any case in which there is doubt about the safety of the conviction", according to guidance.

Mr Malkinson's solicitor Emily Bolton, director of the Appeal charity, said: "The documents are a shocking chronicle of how Andy was utterly failed by the body which should have put an end to his wrongful conviction nightmare, but instead acted as a barrier to justice.

Andrew Malkinson
Andrew Malkinson. Picture: Alamy

"An overhaul of the CCRC is needed to prevent it failing other innocent prisoners."

James Burley, investigator at Appeal, said: "These records prove that the CCRC's handling of Andy's case was deeply flawed and a complete mess.

"By not bothering to obtain the police files, the CCRC failed to uncover evidence which could have got Andy's name cleared a decade earlier."

He added: "The CCRC's internal comments show that in deciding not to commission any DNA testing, cost was at the forefront of their considerations. That decision may have saved the CCRC some money, but it came at a brutal cost for both Andy and the victim.

Andrew Malkinson
Andrew Malkinson. Picture: Alamy

"The CCRC has been giving the false impression that a DNA breakthrough could not have been achieved by them sooner.

"These records show that is nonsense, and I don't think they would have commissioned any DNA enquiries on this case at all if APPEAL hadn't obtained new DNA testing results ourselves first."

Mr Malkinson said: "If the CCRC had investigated properly, it would have spared me years in prison for a crime I did not commit.

"I feel an apology is the least I am owed, but it seems like the very body set up to address the system's fallibility is labouring under the delusion that it is itself infallible. How many more people has it failed?"

A CPS spokesperson said: "It is clear Mr Malkinson was wrongly convicted of this crime and we share the deep regret that this happened.

Andrew Malkinson
Andrew Malkinson. Picture: Alamy

"Evidence of a new DNA profile found on the victim's clothing in 2007 was not ignored. It was disclosed to the defence team representing Mr Malkinson for their consideration.

"In addition, searches of the DNA databases were conducted to identify any other possible suspects. At that time there were no matches and therefore no further investigation could be carried out."

The CCRC added: "As we have said before, it is plainly wrong that a man spent 17 years in prison for a crime he did not commit."

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