The full Court of Appeal Criminal Division judgment in the troubling, high-profile case of Andrew Malkinson was published yesterday (7th August, 2023) by the Courts and Tribunals Judiciary and can be read at this weblink.
Mr Malkinson was jailed in 2004 for an attack on a woman in Salford and the prosecution case against him was based only on identification evidence.
At a hearing on 26th July, 2023 at the Royal Courts of Justice, three law lords ruled the conviction ‘unsafe’ after new DNA evidence linking another suspect to the crime emerged.
The Court of Appeal judges have now also found that Greater Manchester Police did not disclose relevant images during the Malkinson trial.
The police evidence included photographs of the victim’s hands which showed the fingernail of the rape victim’s left middle finger was noticeably shorter than her other fingernails, which corroborated her evidence that she scratched her attacker’s face.
In his written judgment, Lord Justice Holroyde said “the failure to disclose the photographs had prevented [Mr Malkinson] from putting his case forward in its best light and strengthened the prosecution case against him”.
Mr Malkinson’s defence team was therefore unable to highlight to the jury that he had no such scratch injury to his face.
Lord Justice Holroyde said: “If the photographs had been disclosed, the jury’s verdicts may have been different”.
The judgment also highlighted the fact that two eyewitnesses who identified Mr Malkinson both had convictions for dishonesty offences: “….if the previous convictions had been disclosed during the trial it would have been capable of casting doubt on their general honesty and capable of affecting the jury’s view as to whether they were civic-minded persons doing their best to assist.”
“In our judgement, the challenge to the character and credibility of those two identifying witnesses would have been capable of affecting the jury’s overall view as to whether they could be sure that the appellant was correctly identified.”
He added: “The stark reality is that the appellant has spent very many years in prison, having been convicted on identification evidence which he always disputed and which cannot now be regarded as providing a safe basis for the jury’s verdicts.
“We regret that this court cannot alter that fact.”
Edward Henry KC, lead counsel for Mr Malkinson, has previously described these as “deplorable disclosure failures, which mostly lay at the door of the Greater Manchester Police”.
Following the Court of Appeal ruling, Mr Malkinson said he felt “vindicated by the court’s finding that [GMP] unlawfully withheld evidence” and “caused his wrongful conviction nightmare”.
He told the BBC: “They had control of the evidence, they chose not to disclose these vital pieces of evidence.
“The impact has been catastrophic on me, of course, to even have had to face trial for this.
“That could have been stopped, or at least reduced the amount of time I’ve had to spend behind bars which I can’t even elaborate what it’s like to be in prison at all for something you’ve not done, let alone aeons of time.”
Andy Malkinson also had some harsh words to say about the criminal justice watchdog:
“The evidence needed to overturn my conviction has been sitting in police files for the past two decades.
“Yet the [Criminal Cases Review Commission] did not bother to look and it fell to a small charity, APPEAL, to bring it to light.”
He said that cost him “extra years behind bars for a crime I did not commit”.
He also told the BBC it had caused him “immense pain” and “oceans of suffering”.
Assistant Chief Constable Sarah Jackson, says GMP accepted the Court of Appeal’s judgment:
“I speak on behalf of the whole force when I say that we are truly sorry for this most appalling miscarriage of justice.
She has extended an invitation to meet with Mr Malkinson to say sorry to him personally for the time he wrongly spent in prison and for all that he endured as a consequence.
ACC Jackson said no further comment was possible as the force was presently being investigated by the Independent Office for Police Conduct, in relation to the case and in order not to prejudice a live criminal investigation.
Neil Wilby, the author of this article, adds:
“Without wishing in any way to draw the spotlight away from Andy Malkinson, who has plainly suffered terribly over the past 20 years, there is, in my informed view, a worse GMP-CCRC-miscarriage of justice case lurking in the GMP shadows. The case of Thomas Bourke, convicted of murder in 1994, can be read here.”
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Page last updated: Tuesday 8th August, 2023 at 07h45
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Picture credit: Sky News
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