A man who spent 17 years in prison after being wrongly convicted of rape has called for the head of a criminal review board to be sacked and stripped of her OBE.
Andrew Malkinson spoke out after his legal team discovered striking similarities between his own ordeal and an earlier case, involving a man called Victor Nealon.
Both cases were based on identification evidence alone, with the presence of another man’s DNA in saliva on the victim’s clothing eventually clearing their names.
They each applied to the Criminal Cases Review Commission (CCRC) asking for their cases to be referred to the Court of Appeal, but were rejected twice.
In Mr Nealon’s case, a CCRC internal review in 2013 found the forensic evidence that cleared him could have been discovered as early as 2003 – 10 years before he was finally freed.
It said: “It is possible that the cellular material might have been discovered had relevant testing been arranged in 2003, when this matter was reviewed for the second time.
“Equally, it is possible that DNA profiles would have been obtained had that material been tested.”
Former postman Mr Nealon, who is in his 50s and originally from Dublin, was found guilty in 1997 of the attempted rape of a woman in Redditch, Worcestershire, serving 17 years in jail – 10 years more than his seven-year minimum term because he persisted in asserting he was innocent.
His conviction was overturned by the Court of Appeal in December 2013 after the new DNA evidence was unearthed.
Mr Nealon had applied for his 1996 conviction to be reviewed by the CCRC in 1998 and 2002, but was rejected, eventually succeeding in 2010 after his lawyers commissioned DNA testing.
The 2013 CCRC review recommended that a trawl be carried out of similar cases to identify missed opportunities around DNA, but despite the parallels with Mr Malkinson’s case it was not re-examined.
A government-commissioned inquiry and an internal CCRC investigation are being carried out into the failings in Mr Malkinson’s case.
He said: “This report proves there has been a serious corporate failure at the CCRC, yet the body’s chair, Helen Pitcher, still refuses to apologise to me.
“She should be sacked and stripped of her OBE.
“Everyone can see that the CCRC’s failings cost me extra years suffering in prison for a crime I did not commit. A real leader would not be holding back an apology until inquiries spell that out.
“New scientific discoveries are made every day, yet it did not even occur to the CCRC to use new DNA advances to spare myself and Victor Nealon extra years wrongly imprisoned.”
We welcome the Court of Appeal's decision today to overturn Andrew Malkinson’s convictions on the basis of new DNA evidence.
A thread on how DNA breakthroughs meant we could refer his case on the third review, after two declined applications.
(1/8) 🧵
— Criminal Cases Review Commission (CCRC) (@ccrcupdate) July 26, 2023
Mr Malkinson finally had his 2003 conviction quashed last summer after years protesting his innocence.
He had applied for his case to be reviewed by the Criminal Cases Review Commission in 2009, but at the conclusion of its review in 2012 the commission refused to order further forensic testing or refer the case for appeal, amid concerns over costs.
A second application was rejected in 2020.
The crucial DNA evidence had been available since 2007, but no match was found on the police database at the time.
James Burley, an investigator for legal charity Appeal who obtained the CCRC Nealon report under Freedom of Information legislation, said: “This report reveals the CCRC effectively learnt nothing from its failure to properly investigate Victor Nealon’s wrongful conviction – and Andy Malkinson paid the price in the form of extra years behind bars for a crime he did not commit.
“The report recommended the CCRC review its handling of similar cases to see if DNA testing opportunities made possible by scientific advances had been missed. Yet this failed to prompt the CCRC to take advantage of new DNA techniques which could have seen Andy Malkinson exonerated years sooner.
“The CCRC’s report complacently concluded with a ‘high degree of confidence’ that what happened to Victor Nealon could not happen again. Yet the CCRC failed Andy Malkinson in a strikingly similar way.”
A CCRC spokesman said the commission cannot “engage in a detailed discussion” about the case while its own inquiry and the government probe are ongoing.
He went on: “Following the quashing of Mr Malkinson’s conviction the CCRC commissioned an independent review into Mr Malkinson’s case, led by barrister Chris Henley KC, to understand the broader issues of the case.
“This review, together with the independent inquiry set up by the Ministry of Justice, should provide the answers Mr Malkinson and the CCRC seek.
“CCRC chairman Helen Pitcher OBE has previously acknowledged the profound impact that Mr Malkinson’s wrongful conviction has had on his life and the unacceptable time he spent in prison for a crime he did not commit.
“She has offered to meet Mr Malkinson once the Henley Review and independent inquiry have been concluded.”
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