Independent review by Chris Henley KC of the Criminal Cases Review Commission’s (CCRC) handling of the Andrew Malkinson case is published

The results of an independent review by Chris Henley KC of the Criminal Cases Review Commission’s (CCRC) handling of the Andrew Malkinson case, one of the worst miscarriage of justice cases of the 21^st century, has today been published.

The report can be viewed by clicking here.

Background of the Case

On 26^th July 2023 the Court of Appeal quashed Andrew Malkinson’s convictions for two offences of rape, and one offence of attempting to choke with intent to commit an indictable office, namely rape. He had been sentenced on 30^th March 2004 to life imprisonment with a minimum term of 7 years but spent 17 years in prison before he was released, plus a further three under probation supervision. Throughout his ordeal he steadfastly maintained his innocence. It took 20 years, and two Court of Appeal hearings for his conviction to be overturned.

Mr Malkinson made three applications to the CCRC in 2009, 2018 and 2021 to use its statutory powers to refer his case back to the Court of Appeal. The first two applications were refused, the third application resulted in a referral back to the Court of Appeal in January 2023, and ultimately the successful appeal hearing in July that year.

At that Appeal hearing Mr Malkinson was represented by Edward Henry KC.

Independent Review by Chris Henley KC

Following the successful Appeal hearing, on 21st August 2023 the CCRC announced that it was appointing Chris Henley KC to conduct a review of their handling of the three applications Mr Malkinson made to them

The review examined all the work undertaken by the CCRC during their consideration of the three applications, the quality of the decisions made, the investigative strategies, and the length of time taken to reach conclusions. 

Findings of the Review

• Serial failures to obtain the police file at the time of the first review in 2009, again in 2018, which would have produced different outcomes, and again in 2021.
• Specifically, during the 2018 review by the CCRC, concerns were raised over the way identification evidence was obtained that breached Code D of PACE. This should have resulted in the police file being obtained.
• Opportunities to obtain fuller DNA results were missed in 2009. The significance of new DNA findings was not properly understood.
• In 2018 the CCRC should have independently resolved to commission further DNA testing on the samples as techniques had advanced.
• The CCRC were wrong to appear, in a statement put out in August 2023, to take full credit for the retesting that had taken place as part of its consideration of the 2021 application. All the crucial initial tests, which led to the further testing overseen by the CCRC, had been carried out by APPEAL without the assistance of the CCRC. Similarly It was Appeal who unearthed the failure by the GMP to disclose previous convictions of prosecution witnesses and photographs that proved a key medical finding had been mis-recorded

Recommendations for the CCRC

• The CCRC must review all previous cases where new DNA opportunities might be available. The failure to understand the significance of new DNA results cost Mr Malkinson years in prison.
• Staff must receive regular and improved training in how to assess DNA evidence 
• The CCRC must always provide written reasons if a decision is made not to obtain the police file. The failure to examine the police file in this case meant that very important disclosure failings were not identified by the CCRC.
• The CCRC should work as collaboratively as possible with applicants and their representatives. Issues from a previous application should always be revisited in the light of a new application and should inform opportunities for further testing work.
• Oversight of the work being carried out within the CCRC must improve with regular face to face meetings updating Group Leaders on issues and progress. There was far too much drift in the first application, with months passing and almost nothing happening.
• The CCRC must receive more resources from Government. The CCRC’s caseload has grown dramatically over recent years at a time when its budget has reduced significantly

Statement from Chris Henley KC

“Mr Malkinson spent many years in prison fighting this appalling miscarriage of justice. In 2009 he turned to the CCRC but they failed him. Lessons must be learned. It is almost impossible to believe that this is the only case that has not been handled properly. The CCRC must make every possible effort to identify other applications where mistakes might have been made, and immediately implement the recommendations made in my report”

Chris Henley KC, on publication of his Review