CCRC apologises to Malkinson

Independent review stresses danger of relying on identification evidence alone

The Criminal Cases Review Commission (CCRC) has made an unreserved apology to Andrew Malkinson after an independent inquiry found shortcomings in the way his case was handled by the review body.

Chris Henley KC said it should not have needed three applications to the body that reviews suspected miscarriages of justice — in 2009, 2018 and 2021 — before Malkinson’s case was referred to the Court of Appeal last year and his convictions for rape, which date back to 2004, were quashed.

Andrew Malkinson

Helen Pitcher CBE, the CCRC chair, said today:

Mr Henley’s report makes sobering reading, and it is clear from his findings that the commission failed Mr Malkinson. For this, I am deeply sorry and wish to offer my sincere regret and an unreserved apology on behalf of the commission.

I want to assure everyone of our commitment to learn from this. Mr Henley’s report includes nine recommendations, and the commission has already begun work to implement them.

Nobody can begin to imagine the devastating impact that this wrongful conviction has had on Mr Malkinson’s life, and I am deeply sorry for the additional harm caused by our handling of the case.

On behalf of the commission, I offer my deepest regret.

Henley’s report was completed in April. It then had to be redacted to avoid prejudicing a police investigation. Commissioners and staff at the CCRC have been anonymised so as not to identify those who dealt with Malkinson’s case. The commissioner who refused Malkinson’s first application in 2009 declined to be interviewed. A forensic scientist involved in the case had been advised not meet Henley because of the risk of prejudicing police investigation — a response the KC did not accept.

Henley spoke to the CCRC’s current director of casework and its in-house counsel. But in a surprising omission, he appears not to have interviewed Karen Kneller, the chief executive and former director of casework who has been at the CCRC throughout the period under review.

Even more surprisingly, Henley appears not to have interviewed Pitcher or given the CCRC chair an opportunity to respond to criticisms he makes of her in his report. She was appointed to the CCRC in October 2018 with a brief to put right an organisation that was struggling to make timely referrals to the Court of Appeal. Her predecessor Richard Foster CBE spoke frankly at the time about the challenges faced by the commission and the risk that serious miscarriages of justice would go undetected and remain unrectified.

Introducing his 105-page report, Henley said:

This case exemplifies, once again, the fundamental importance of full and transparent pre-trial disclosure of all relevant material to the defence, to ensure the integrity of the trial process. It also provides a lesson about the very strong emotional pull of identification evidence, not only on a jury but also on legal professionals and judges, and its fallibility, even when it comes from multiple witnesses, which is so difficult to assess.

The profoundly mistaken verdicts in this case underscore the danger of relying on identification evidence in the absence of any other independent supporting evidence, as other miscarriage cases have before.

Perhaps above all, this case demonstrates a deep seated, system-wide, cultural reluctance, which starts right at the top in the Court of Appeal, to acknowledge our criminal justice system will on occasion make mistakes — that entirely innocent defendants will sometimes be convicted — and have this possibility at the forefront of our collective mind when trying and reviewing cases. This is no more than being faithful to the presumption of innocence, the guiding principle of our system of justice which we all subscribe to.

It is not by any standard a success, or a demonstration that things are working properly, that Mr Malkinson had to wait 20 years to be exonerated.

In his concluding remarks, the reviewer said:

The CCRC’s role is to refer appropriate cases to the Court of Appeal. The CCRC must get the analysis of the material right and then apply the test for referral correctly. In this case the Court of Appeal in fact went further than the CCRC, identifying grounds to quash the convictions which the CCRC had failed to identify with the same clarity.

The CCRC must learn from this. It must aspire to capturing more miscarriages of justice, and to achieve this it needs to be clearer sighted than happened in Mr Malkinson’s case. The question should always be “might this be a miscarriage case?” rather than an exercise in thinking of reasons why the Court of Appeal might reject the referral.

Of course, the assessment of a case must be rational and grounded in a rigorous analysis of what the new evidence means. But the emphasis should be “what if?” rather than “why not?”.

Henley called on the CCRC to make a wholehearted apology to Malkinson. “They failed him,” he added. They had required the legal support group Appeal — which backed Malkinson — to obtain the new DNA evidence that ultimately resulted in the referral by the CCRC, Henley said.

He continued:

The opportunity to have this case referred in 2009 was missed and a further opportunity to look again at the DNA evidence when the second application was received in 2018 was not taken.

The public statements of the CCRC’s chair do not properly reflect this. The chair of the CCRC took part in a Sunday Times podcast in October 2021 about Andrew Malkinson’s case: “Seventeen Years — the Andrew Malkinson story”. In the interview, the chair stated that “when we do [make mistakes] we stick our hands up as soon as possible”.

This hasn’t happened. If Appeal’s application in August 2019 to the Legal Aid Agency for funding to carry out re-testing of the samples had been refused, from everything I have seen I have no confidence that the CCRC would have agreed to undertake this crucial initial testing work themselves. I have seen nothing to persuade me that the CCRC would have independently considered that retesting was justified or had any prospect of producing anything new which might call into question the safety of the conviction. The opportunity to do so in 2018/19 was not taken.

The CCRC’s consistent stance had been that this was a case that had been proved by identification evidence that the Court of Appeal had described, in 2006, as compelling. In my opinion, the statements made by the chair in January 2023 at the time of the referral, and su equently in July and August 2023, claimed too much credit for the new DNA evidence, and took too little responsibility for the mistakes that were made.

Whilst the first two of these public statements made reference to some of the work of Appeal, the overall effect was to gloss over the CCRC’s failure to understand the significance of the new DNA material at the time of the first application in 2009, the failure in 2018 to have further DNA testing undertaken themselves, or to support Appeal’s retesting of the available samples when this became known, and the fact that even in 2022 the CCRC appeared to be on the verge of repeating the error that no referral could be made unless the unknown DNA donor could be identified.

Summarising his findings, Henley said:

• The police file from the original investigation should have been obtained at the time of the first review in 2009.

• The police file should have been obtained and examined in 2019.

• The significance of the new DNA evidence was not properly understood in

  2009.

• The CCRC had decided that because the donor of the DNA components found in 2007 could not be matched to any profile on the DNA database, no referral should be made. The CCRC should have made regular searches of newly-added profiles in the years that followed.

• The CCRC’s initial reasoning in relation to the further DNA evidence submitted as part of Malkinson’s third application in 2021 appeared to repeat the same error in analysis as was made in 2009.

• Criticisms of the CCRC’s failure to apologise in 2023 were well-founded.

• The CCRC should have discovered undisclosed photographs of the alleged victim’s hands during the first two reviews.

I understand that the CCRC would have responded to some of these points if it had been given the opportunity before Henley completed his report.

The KC made a number of general recommendations, all of which the CCRC says it has already begun to implement to the extent that it can. A further recommendation is that the commission should be provided with more resources.

Update 1315: Malkinson and Appeal have now responded.

Malkinson said:

This report lays bare how the CCRC obstructed my fight for justice and cost me an extra decade wrongly imprisoned.

The finding that in 2022 the CCRC was considering rejecting my case for a third time, despite the compelling DNA evidence presented by my legal team, shows that the body is biased through and through. It needs to be torn down and completely rebuilt.

I’m pleased Mr Henley has condemned the CCRC’s chair for putting off her apology and cynically trying to spin the CCRC’s mishandling of my case as a success. If Helen Pitcher is truly sorry, she’ll step down and let someone serious about fighting miscarriages of justice take charge.

If Helen Pitcher and her leadership team won’t resign after a scathing report like this, they should be sacked.

The CCRC’s delay in publishing this report and its decision to conceal the names of the personnel whose actions caused me so much suffering is shameful. Both the public and I deserve transparency and accountability, but the CCRC is more concerned with protecting its people from criticism.

James Burley, who led Appeal’s investigation into Malkinson’s case, said:

This report is utterly damning. It details a catalogue of failures by the CCRC, from it missing the chance to correct this miscarriage of justice way back in 2009 to its leader last year shamelessly trying to spin her organisation’s disgraceful mishandling of Andy’s case as a success.

Mr Henley’s report makes clear that the CCRC is not investigating and deciding cases properly. No one can doubt now that the CCRC is a broken safety-net which sets the bar unreasonably high for innocent prisoners trying to clear their names. The CCRC must be completely overhauled.

The new justice secretary should bring in a fresh leadership team at the CCRC that is serious about rooting out wrongful convictions. Mr Henley’s report is personally devastating for the CCRC chair Helen Pitcher and no right-minded person can have confidence in her leadership.

It says a lot about the CCRC’s commitment to transparency that it has withheld from Andy the names of the CCRC personnel whose decisions cost him so many extra years wrongly imprisoned.

Update 1330: The justice secretary has invited Pitcher to resign. I understand she has no intention of doing so.

Update 1400: Toby Wilton of Hickman & Rose, Malkinson’s solicitor, said: 

This report exposes how Andrew Malkinson was failed not only by the CCRC, but by the criminal justice system more widely. 

The CCRC failed to obtain key evidence in his case; failed to properly consider the evidence it received; and failed to apply the correct legal test when deciding whether to refer Mr Malkinson’s case to the Court of Appeal. 

Mr Malkinson has spent the past twenty years fighting for justice. He is not about to stop now.

It is vital that the CCRC is held to account for its shocking failures in this case and completely overhauled.