Christina Goody reviews the judgement in R v Malkinson’

In 2004, Malkinson received a life sentence. Almost two decades later, his conviction was reviewed by the Criminal Cases Review Commission (CCRC) and made subject to a reference back to the Court of Appeal. The Court of Appeal has now quashed the conviction.

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Andrew Malkinson was sentenced to life imprisonment as a result of his conviction for attempting to choke, suffocate, or strangle with the intent to commit rape, alongside two separate charges of rape. In January 2023, the CCRC referred Mr. Malkinson's case to the Court of Appeal, marking his third application. This application was intended to rely on further scientific investigation commissioned by the CCRC following developments in DNA analysis. The first application was made when advanced DNA techniques weren't accessible, and the second focused on identification procedure concerns. The Court of Appeal's judgment found the conviction unsafe on the DNA evidence grounds showing a match to another potential suspect. On the 26th of July 2023, it was announced that his appeal had been allowed and his convictions quashed.

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The first ground of appeal, referred to by the CCRC, asserts that the newly presented DNA evidence contradicts the prosecution's case and instead implicates the other suspect, not Malikson. This evidence was found to be compelling as the location of DNA was on the victim’s vest top, near to the location she alleged she had been bitten. The appellant argued that the other suspect’s proximity to the crime scene, alignment with the victim's description, relevant criminal history, make him a more likely suspect.

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The second ground of appeal addresses an important issue regarding the non-disclosure of?photos. These pictures apparently show that the victim’s fingernails weren't the same on both hands – her left middle finger had a noticeably shorter nail. This raises doubts about evidence given by a deputy police surgeon at the time of trial, as it clashes with the victim’s story about scratching her attacker's face. The judge told the jury that if the victim’s scratching account was plausible, they should acquit. The CCRC couldn't confirm for sure if these photos were shown, but the argument asks the court to assume they weren't.

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The third ground of appeal raises a significant concern regarding the failure of disclosing previous convictions for witnesses Beverley Craig and Michael Seward. Despite a formal request for such information pertaining to all prosecution witnesses, the records for these two individuals were not provided. During the trial, both witnesses were portrayed as honest and driven by civic duty, whereas their undisclosed records indicate convictions related to dishonesty. While records of previous convictions were disclosed for other witnesses, the argument points out the absence of any such record for Craig and Seward.

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The CCRC is responsible for reviewing potential miscarriages of justice in criminal cases. They thoroughly examine convictions where new evidence or legal issues have emerged, aiming to ensure fairness and accuracy in the criminal justice system. If they find substantial grounds for believing a conviction may be unsafe, they can refer the case to the Court of Appeal for further consideration. The CCRC’s role involves evaluating fresh evidence, assessing if it poses a real risk to the conviction’s safety. They can initiate further scientific investigations, exemplified by their decision to conduct Y chromosome DNA analysis, which was previously unavailable, exercising their power to explore new evidence that could impact the case.?