Man cleared of rape he didn’t commit after serving 17 years in prison

A man who served 17 years behind bars for a rape he did not commit has finally been cleared.

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.

Mr Malkinson remained in prison for a further 10 because he maintained he was innocent and he was today cleared at the Court of Appeal.

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) had previously conceded Mr Malkinson’s conviction was unsafe because new DNA evidence points to another man.

Reading a statement to journalists outside the Royal Courts of Justice, Andrew Malkinson criticised Greater Manchester Police for their failings in his case.

‘Since I was arrested in 2003, the police, the prison system and probation service have been calling me a liar, because I denied that I committed the crime,’ he said.

‘They claimed I was ‘in denial’ and made me serve an extra 10 more years in prison because I would not make a false confession.

‘I am not a liar. I am not in denial but I will tell you who is: Greater Manchester Police are liars, and they are in denial.

‘Even after this judgment today, I predict we will see them denying responsibility for what happened. We will see them stretching credulity with their excuse-making.

‘Greater Manchester Police have been scrambling to cover up how they wrongfully convicted me for 20 years.’

‘On August s 2003 I was kidnapped by the State. It has taken nearly 20 years to persuade my kidnappers to let me go.

‘Seventeen years, 4 months and 16 days of that time were spent in prison.

‘At every parole hearing I sat before a panel who shook their heads at me, considering me to be dangerous – and all that time the real perpetrator, the real dangerous person, was free.’

The suspect can only be identified as Mr B, and the court heard there ‘must now be a real possibility’ he will be charged over the attack.

However, Mr Malkinson’s legal team also wanted the court to overturn his conviction on additional grounds, which Mr Henry summarised as ‘deplorable disclosure failures which mostly lay at the door of the Greater Manchester Police’.

The barrister said these failings, which were only uncovered 15 years after his conviction, meant Mr Malkinson did not receive a fair trial in 2004 and frustrated his previous challenge at the Court of Appeal in 2006.

Mr Henry told the court there was a ‘realistic possibility at trial that he would not have been convicted’ or that his appeal would have been successful in 2006.

He told Lord Justice Holroyde and the other two judges hearing the appeal: ‘(They were) grave and repeated disclosure failures during those proceedings that undermined any prospect of a fair trial.

‘In more than one sense this is an historic case, but also an historic injustice.’

The barrister argued that police photographs, taken within hours of the attack but only disclosed in boxes of case documents years later, supported the victim’s evidence that she scratched her attacker and broke a nail on her left hand.

Had they been disclosed before Mr Malkinson’s trial, he argued, they would have corrected the evidence of a doctor who wrongly said the broken nail was on the victim’s right hand, and the trial judge would therefore not have directed the jury that they could ‘exclude’ the victim’s evidence about that if they were sure she was mistaken.

He said in written arguments the failure to disclose the photographs ‘deprived’ Mr Malkinson of his ‘strongest defence point – his lack of any facial injury’.

Mr Henry also argued that undisclosed evidence relating to two eyewitnesses to the attack – Michael Seward and Beverley Craig – meant the jury were ‘misled’ into thinking of them as honest and credible, when both had previous convictions for dishonesty offences and one was a long-term heroin user.

None of this was known to Mr Malkinson or his defence team at trial, which Mr Henry argued ‘violated his right to a fair trial’ by depriving him of information which would have helped him to counter the only evidence which supported the victim’s identification of him.

He said in written arguments: ‘At trial, they were presented as honest witnesses whose evidence could safely be relied on to buttress (the victim’s) identification of the appellant and the defence – deprived of their criminal histories – conceded both were honest.

‘It is now clear the jury were given a false impression.

‘Mr Seward and Ms Craig shared a history of untruthful, deceptive and dishonest behaviour, while Mr Seward was additionally a chronic heroin user, who had undisclosed police interactions on both the date he first emerged as a witness and on the date he identified the appellant.’

He added: ‘Previously undisclosed evidence shows the jury were misled into taking the honesty of these witnesses for granted, and deprived of important information going to their credibility and reliability.’

Mr Henry urged the court to determine the appeal on all of the grounds, saying he wanted to ensure ‘the widest possible vindication’ for Mr Malkinson, but also to ‘prevent others from suffering the same fate in future’.

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.

In a statement after the CPS and GMP announced their decision, Mr Malkinson said: ‘I’ve suffered incalculably for the last 20 years as a result of my wrongful conviction, and I continue to suffer each day.

‘I have always known I am innocent. Finally, the prosecution has acknowledged my conviction should not stand.

‘Of course, it is still the Court of Appeal’s decision to grant me justice. I sincerely hope they will give serious consideration to the disclosure failures which denied me a fair trial.

‘The police must be made accountable – no-one should have to suffer what I’ve been through.’

Assistant Chief Constable Sarah Jackson of Greater Manchester Police said: ‘We are truly sorry to Mr Malkinson that he is the victim of such a grave miscarriage of justice, in being convicted of a crime he did not commit and serving a 17-year custodial sentence.

‘Whilst we hope this outcome gives him a long overdue sense of justice, we acknowledge that it does not return the years he has lost.

‘I have offered to meet with him to personally deliver this apology.

We are also profoundly sorry to the victim of this crime, who not only suffered an horrific trauma 20 years ago, but also relived the experience during a criminal trial, and now may endure additional harm caused by learning that the true offender has not yet been brought to justice.

‘We are absolutely committed to following all new lines of enquiry to ensure the right person is held accountable for harming her.

‘Whilst this case tragically led to the wrong person being convicted, these instances are thankfully very rare.’

Addressing the victim of the rape he did not commit, Andrew Malkinson said: ‘As this is my only chance to say something to her, please allow me to address her directly.

‘Sitting in my prison cell, I used to wrack my brains as to how you could say you were so sure it was me when I knew it was not.

‘I read all I could and learned about how fraught with risk the process of line-up identification is when someone has been subject to trauma. I wondered if the police ‘helped’ you to pick me.

‘Since my release, I have had the privilege of being introduced to an American woman called Jennifer Thompson, a rape survivor who was caught up in a wrongful conviction, and she has helped me at least begin to try to understand what you went through that night, and what it has been like for you since.

‘I am so sorry that you were attacked and brutalised that night by that man. I am not the person who attacked you, but what happened to me is not your fault.

‘I am so sorry if my fight for the truth, as I knew it to be, has caused you extra trauma. I am so sorry that the system let you down. It let us both down.

‘There are no winners in a wrongful conviction case with the exception of the real perpetrator. Everyone gets failed, from the original victim to the wrongfully convicted person.

‘I sincerely hope that you are receiving the support you need and the apology from the police that you deserve.’

Got a story? Get in touch with our news team by emailing us at webnews@metro.co.uk. Or you can submit your videos and pictures here.

For more stories like this, check our news page.

Follow Metro.co.uk on Twitter and Facebook for the latest news updates. You can now also get Metro.co.uk articles sent straight to your device. Sign up for our daily push alerts here.