Wrongful conviction of Andrew Malkinson

Andrew Malkinson (born 23 January 1966) is a British man who was wrongfully convicted and jailed in 2004 for the rape of a 33-year-old woman in Salford, Greater Manchester. He was released from prison in 2020 after serving 16 years, still maintaining his innocence, and his conviction was finally quashed by the Court of Appeal in 2023 after DNA evidence proved he was not the attacker.^[1][2]

The 33-year-old female victim had been walking home in Little Hulton in the early hours of 19 July 2003, when she was dragged down a motorway embankment, strangled until unconscious, and sustained the following injuries: swollen left eye, which she could barely open, a fractured cheekbone, bruising to her neck, scratches and scrapes to her back, legs and arms, and severe injury to her left nipple.^[3] After losing consciousness she was raped.^[4]

Malkinson was identified by the victim in an identity parade line-up. Several key details did not match the description of the perpetrator, for example she described the attacker as being 3 inches shorter than Malkinson, with a hairless chest and no tattoos. Malkinson had chest hair and prominent tattoos on his forearms. She also said the attacker would have a "deep scratch" to his face. Malkinson was seen at work the next day with no scratch to his face.^[5]

There was no DNA evidence linking him to the crime at the time.^[6]

At trial, he was presented as a drifter and was found guilty of two counts of rape and attempting to choke, suffocate or strangle with intent to commit rape but found not guilty of attempted murder after a jury at Manchester Crown Court (Crown Square) spent nine hours considering their verdicts.^[7] He was convicted by a 10–2 majority jury verdict and sentenced to life imprisonment with a minimum term of 6½ years.^[7][8][9]

Malkinson appealed his conviction in 2006, and applied to the Criminal Cases Review Commission (CCRC) for review in 2009 and, assisted by the charity Appeal, in 2018; all were denied.^[10] The CCRC was warned in 2013 about the potential for exculpating DNA evidence after a review of a separate case with a similar fact pattern to Malkinson's, the wrongful imprisonment of Victor Nealon, but this was not acted upon.^[11]

Before he was exonerated, a chief constable of Greater Manchester Police had suspended the force's misconduct investigation into the case.^[12] Re-testing of cold case samples in 2007 revealed another man's DNA in a sample taken from the victim, with the Crown Prosecution Service (CPS) aware of this by December 2009. At the time, there was no match in the National DNA Database for this other man. The CPS advised against further examination, and the CCRC also declined to review Malkinson's case on cost–benefit grounds, despite the potentially exonerating evidence.^[13]

Malkinson could have been released after 6½ years but was not due to his maintaining his innocence.^[14] He was released in 2020 for good behaviour.^[10]

Malkinson made another application to the CCRC in 2021, and, in 2022, a man was arrested in connection with the original crime.^[10] The CCRC referred the case for appeal,^[10] and the conviction was quashed by the Court of Appeal in July 2023,^[15] using evidence from the 2007 re-testing of samples, which identified a man who had subsequently been placed in the National DNA Database.^[13]

Malkinson also asked why wrongfully convicted prisoners should be charged jail living costs, which is deducted from any compensation received.^[16] After it emerged that Malkinson may have money deducted from his compensation to pay for his prison living costs, senior Conservative MP Sir Bob Neill urged the UK government to change the rule, stating that "Any fair-minded person thinks this is just wrong."^[17] Agreeing that the situation was unfair, a spokeswoman for Rishi Sunak, UK Prime Minister at the time, subsequently said Sunak had "been speaking with the Home Office and with others in government to establish the facts and ensure that the approach is right and fair".^[18]

On 6 August, Secretary of State for Justice Alex Chalk confirmed the rule would be scrapped, describing it as a "common sense change which will ensure victims do not face paying twice for crimes they did not commit".^[19] Chalk subsequently announced that he was looking at other cases of wrongful conviction with a view to backdating the rules.^[20]

Upon his name being cleared, Malkinson stated that he felt he was "forcibly kidnapped ... by the state".^[21] Greater Manchester Police apologised^[22] although this apology was not accepted by Malkinson, who called it "meaningless".^[23] The Independent Office for Police Conduct opened a review into the GMP's handling of Malkinson's complaints.^[13]

Edward Garnier, a former Solicitor General, called for a public inquiry and criticised the justice system's handling of the case and particularly the conduct of the CCRC, saying that the decision to reject Malkinson's 2009 appeal on cost–benefit grounds despite the lead of the unknown man's DNA had, in fact, led to significant costs both to Malkinson and to the state in compensation to be paid; further, he suggested that exemplary damages may be due "because of the oppressive and arbitrary behaviour of agents of the state".^[13] Former Director of Public Prosecutions Ken Macdonald and barrister Michael Mansfield also called for an inquiry.^[24]

The Criminal Cases Review Commission announced on 17 August 2023 that it had appointed an external KC to review into its handling of the case.^[25] On 24 August, the Justice Secretary, Alex Chalk, announced the launch of a non-statutory inquiry to investigate the role of the Crown Prosecution Service, Greater Manchester Police and the Criminal Cases Review Commission.^[26]

On 13 September 2023, the Independent Office for Police Conduct announced it would investigate Greater Manchester Police's handling of the Malkinson case.^[27]

After release from prison, Malkinson lived in a tent in Spain.^[28]

The case was featured in the academic journal Medicine, Science, and the Law in 2021,^[29] and is also the subject of a dedicated podcast.^[30] The case was also the subject of the BBC Two documentary The Wrong Man: 17 Years Behind Bars, which aired on 6 June 2024.^[31]

An inquiry into the wrongful conviction, led by Judge Sarah Munro KC, began on 26 October 2023. The hearing will examine the original investigation by Greater Manchester Police and why it took so long for the conviction to be overturned. Munro said she would be "fearless" in seeking the truth.^[32]