Man who spent years in jail for rape he did not commit cleared by appeal court
Written by First Choice Radio on 26 July 2023
Andrew Malkinson, who served 17 years behind bars for a rape he did not commit, has been cleared by the Court of Appeal.
The 57-year-old was found guilty of raping a woman in Greater Manchester in 2003 and the following year he was jailed for life with a minimum term of seven years.
But his conviction was quashed by senior judges on Wednesday, after DNA evidence came to light which linked another potential suspect to the crime.
Overturning his convictions, for two counts of rape and one of choking or strangling with intent to commit rape, Lord Justice Holroyde said Mr Malkinson could “leave the court free and no longer be subject to the conditions of licence”.
At the time of Mr Malkinson’s 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 Prosecution Service (CPS) conceded that Mr Malkinson’s conviction was unsafe because the new DNA evidence points to another man, who the court ordered can only be identified as Mr B, and said there “must now be a real possibility” that man will be charged over the attack.
The CPS and Greater Manchester Police (GMP) confirmed in May they would not contest the appeal.
Lord Justice Holroyde said other points argued by Mr Malkinson’s legal team, about “crucial” material that was not disclosed at the time of his trial, “raised a number of substantial and important points” and the court would take time to consider them and give a decision on them later in writing.
He added: “However, we must keep Mr Malkinson waiting no longer to know the outcome of his appeal.”
At the preliminary hearing in May, Edward Henry KC, representing Mr Malkinson, told the court the Criminal Cases Review Commission (CCRC), which investigates possible miscarriages of justice and referred Mr Malkinson’s case to the Court of Appeal, had been aware since 2009 that there was “crime-specific” DNA which was not a match for either Mr Malkinson or the victim.
However, he said at that time the CCRC “did not consider it tipped the balance towards a referral” to the Court of Appeal.
In October last year, the sample was found to be a partial match for another man, who the court ordered can only be identified as Mr B.
Mr Malkinson previously applied twice for his case to be reviewed by the CCRC but was turned down, eventually being released from prison in December 2020.
After his release, advancements in scientific techniques allowed his legal team, supported by legal charity Appeal, to provide new DNA analysis that cast doubt on his conviction to the CCRC.
The body 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 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.
Published: by Radio NewsHub