A man who served 17 years behind bars for a rape he says he did not commit has said clearing his name is the “single most important thing” in his life as he appeared at the Court of Appeal.
Andrew Malkinson, 57, was found guilty of the 2003 attack on a woman in Greater Manchester and the following year was jailed for life with a minimum term of seven years. He remained in prison for a further 10 years because he maintained he was innocent.
He spoke outside the Royal Courts of Justice in London on Wednesday 3 May following a hearing in his appeal against his conviction – which centres around new DNA evidence that recently emerged pointing to another potential suspect.
Mr Malkinson said it has been 20 years since he was arrested and that he hoped the court reaches “the right decision and quashes the conviction”, adding it has “taken a huge toll'' on his life.
Asked what it would mean to clear his name, he said: “It is the single most important thing in my life, since the day I was convicted.
“I come from a strong, honourable family. My father and grandfather were military men and they fought with distinction.
“I am proud to be a Malkinson and they have tarnished our name. I could never do what they accused me of, never.
“I want the court to find I am innocent, if they don’t I will keep on fighting.”
His appeal is due to be heard in July after three senior judges gave directions at Wednesday’s hearing about how the case should progress.
The case was referred to the court in January by the Criminal Cases Review Commission (CCRC), which investigates potential miscarriages of justice, after new DNA evidence was discovered.
He previously applied for his case to be reviewed by the CCRC twice, 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 the legal charity Appeal, to provide new DNA analysis which cast doubt on his conviction.
The CCRC then commissioned its own testing that found that DNA from the victim’s clothing matched another man on the national police database.
Greater Manchester Police confirmed in January that a man had been arrested and released under investigation in light of the new information, but no decision has yet been made as to whether he will be charged.
At Wednesday’s hearing, Edward Henry KC, for Mr Malkinson, told the court the CCRC was 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.
But, 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”, and forensic investigations are ongoing, with a final report due later this month.
Mr Henry said that, “to this day” no DNA evidence to link Mr Malkinson to the crime has ever been deduced.
The prosecution case against him at his trial was based solely on identification evidence.
Addressing the court, Mr Henry said that, despite his earliest release date being in 2010, Mr Malkinson was not released until late 2020 “because throughout those many years in prison, which he served for an offence we submit he was wholly innocent of, he never once conceded that he was responsible for those appalling crimes… he never admitted his guilt”.
The barrister added: “The only thing he had left was his family honour and, in particular, the memory of his grandfather who fought with distinction for this country, and therefore he was not going to admit something he had not done.”
He said the case should be handled with “profound urgency”, despite the fact Mr Malkinson has been freed from jail, adding: “Nevertheless it should be recognised that he served more than double his sentence because he protested his innocence, as he had done from the outset, and shortly after his arrest in interview he had asked for everything to be DNA swabbed.”
Mr Henry said Mr Malkinson “not unreasonably” has “grave concerns about police conduct through the entirety of this matter”.
He added: “This is a case where there has been an array of procedural breaches and… abdication of responsibility in connection with the preservation of exhibits.”
While his main ground of appeal is the fresh DNA evidence, Mr Henry told the court there were photographs of the victim’s hands, corroborating her evidence that she scratched her attacker and broke a nail, which were not disclosed at the time of Mr Malkinson’s trial.
He also told the court there is evidence that one of the key identification witnesses was a “long-term user of heroin”, which may have affected his memory, but that was not known by Mr Malkinson or his legal team at trial.
Lord Justice Holroyde, sitting with Mrs Justice McGowan and Mr Justice Holgate, said the Crown Prosecution Service (CPS) has until 23 June to either file a response to the appeal or notify Mr Malkinson that it does not intend to oppose it.
The judges also said that, if the CPS wishes to re-interview the victim, that must take place before 9 June and be conducted in accordance with a plan given to Mr Malkinson’s legal team, and be recorded.
The case will return to the court at some point in the two weeks after 17 July.
Legal charity Appeal said in January that the new analysis of the DNA was only possible because samples had been kept by the Government-owned company Forensic Archive Limited, and accused Greater Manchester Police of having destroyed or lost exhibits.
Want a quick and expert briefing on the biggest news stories? Listen to our latest podcasts to find out What You Need To know...