Neil Wilby Media

At the time of his trial, there was no DNA evidence linking him to the crime and the prosecution case against him was based solely on identification evidence. The Crown Court jury returned a majority verdict.

His case was referred to the Court of Appeal in January, 2023 by the Criminal Cases Review Commission (CCRC), which investigates potential miscarriages of justice, after the new evidence was discovered.

Both the Crown Prosecution Service (CPS) and GMP confirmed in May, 2023 that they will not contest Mr Malkinson’s appeal, and the court may quash his conviction at today’s hearing if it decides it is unsafe.

In a statement released after the CPS and GMP announced their decisions, Andy said:

“I’ve suffered incalculably for the last 20 years as a result of my wrongful conviction, and I continue to suffer each day.

“Of course, it is still the Court of Appeal’s decision to grant me justice. I sincerely hope they will give serious consideration to the disclosure failures which denied me a fair trial.

“The police [GMP] must be made accountable – no one should have to suffer what I’ve been through.”

Whilst the principal ground of appeal is fresh DNA evidence, his lawyers told the court at a preliminary hearing in May, 2023 that there were also photographs of the victim’s hands, corroborating her evidence that she scratched her attacker and broke a nail, which were not disclosed at the time of Mr Malkinson’s trial.

They also said there is evidence that one of the key identification witnesses was a “long-term heroin user”, which may have affected his memory, but that was also not disclosed at trial.

At a preliminary hearing in May,2023, Edward Henry KC, leading counsel for Andy Malkinson, told the Court of Appeal that the CCRC had been aware since 2009 that there was “crime specific” DNA which was not a match for either Mr Malkinson or the victim.

He added that at the time the CCRC “did not consider it tipped the balance towards a referral” back to the appellate court.

But, in October, 2022, the sample was found to be a partial match for another man, whom the court ordered can only be identified as Mr B. According to the CCRC, this new suspect also matches the physical description of the attacker given by the victim at the time of the offence. A 48-year-old man from Exeter was arrested on 13th December, 2022 on suspicion of the rape, Greater Manchester police confirmed in January, 2023. He has been released under investigation.

Mr Malkinson had previously applied twice for his case to be reviewed by the CCRC, the first in 2006 after a failed appeal to the same Court of Appeal that will hear the second appeal today, but was turned down on both occasions.

He was eventually released from prison in December 2020 on a lifetime licence. 

After his release, advancements in scientific techniques allowed his legal team, supported by the charity, Appeal, to provide new DNA analysis to the CCRC that cast doubt on his conviction. In May 2021, Appeal submitted a third and successful application to the CCRC.

The criminal justice watchdog then commissioned its own testing which found that DNA from the victim’s clothing matched another man on the national police database.

GMP confirmed in January, 2023 that a man had been arrested and released under investigation in light of the new information, but no decision has been made as to whether he will be charged.

The force has declined to comment on recent developments concerning Andy Malkinson. Crucial exhibits were lost or destroyed by GMP, despite the force having a strict legal duty to retain them, meaning they were not available to be tested. This is far from the first time this happened (read more here) and the Court of Appeal is likely to express its concern and an inquiry should follow.

A spokesperson for the charity, Appeal, has said: 

“The DNA breakthrough in this case was very nearly rendered impossible by the police’s unlawful failure to retain key exhibits – and we will continue to push for accountability.”