I met Andrew Malkinson, the victim of one of Britain’s gravest miscarriages of justice, on just one occasion. But he left quite an impression and I’ve been thinking about his case, especially since the belated resignation of Helen Pitcher, chairman of the Criminal Cases Review Commission (CCRC).
The organisation, which investigates potential wrongful convictions, failed Malkinson terribly. He served 17 years in prison for a rape he didn’t commit; the CCRC should have referred his case to the Court of Appeal after seven years.
My encounter with the bearded, bespectacled Malkinson was at an office in central London on a summer’s day 18 months ago, shortly after his conviction had, finally, been quashed. I’d gone there for a briefing about the case with representatives from Appeal, the legal campaign group which had uncovered the crucial DNA evidence that ultimately secured his freedom.
As we were talking, Malkinson returned from lunch and popped his head around the door. We shook hands, but I struggled to find the right thing to say. ‘How are you?’ didn’t seem to cut it. Saying ‘Congratulations!’ to a man who’d spent almost half of his adult life locked up felt completely inappropriate. So we exchanged pleasantries for a few minutes before he left to go to the cinema. It seemed an odd thing to do on such a lovely, sunny day, but understandable if you’ve been deprived of simple pleasures like that for so long.
What struck me about the 58-year-old was his quiet dignity – the way he wore his anger and frustration so lightly. Being incarcerated as an innocent man along with convicted murderers, sex offenders and drug dealers would break most people but Malkinson, somehow, was still standing – not feeling sorry for himself, but just getting on with it. The contrast with Pitcher could not be more stark.
Last week, an independent panel concluded that she had failed in her duties in relation to the case, culminating in ‘reputational damage’ to the CCRC and the criminal justice system more broadly. Pitcher claimed that she was, in effect, a victim too – because she had been ‘scapegoated’. In her resignation letter to the justice secretary, Shabana Mahmood, the 66-year-old lawyer and businesswoman wrote that ‘a head had to roll and I was chosen for that role’ and set out the reasons why she felt she had been unfairly singled out.
‘The original rejection of Mr Malkinson’s appeal was almost a decade before my time: on my watch, armed with new DNA evidence which we commissioned, we were able to resolve the situation, and set Mr Malkinson free,’ she said.
Pitcher’s breathtaking chutzpah appears to fly in the face of the evidence. Although she was not responsible for the CCRC’s initial failures in Malkinson’s case, the organisation which she led was disgracefully slow to act on mounting concerns about his conviction after her arrival in 2018.
A review by the barrister Chris Henley KC, commissioned by the CCRC, pointed out that between 2018 and 2020, it had missed an ‘obvious opportunity’ to search the DNA database to see if a profile from samples at the crime scene matched someone else. Henley also criticised the CCRC for failing to consider further DNA testing. ‘Techniques for testing DNA had improved significantly…the CCRC were not constrained from having further testing carried out themselves. A thorough reading of the material… should have caused the CCRC to give serious thought to doing this work,’ he said.
Henley is clear that the CCRC, under Pitcher’s watch, was ‘too cautious’ and hadn’t learned the lessons of a previous case involving a postman, Victor Nealon, who had been wrongly convicted of attempted rape. He had also spent 17 years behind bars. ‘The training on the lessons from Nealon was inadequate,’ said Henley.
But it’s the astonishing way Pitcher responded after Malkinson had been exonerated that caused her downfall. There was no swift and fulsome apology, as there ought to have been, but, shamefully, it seems to me, an attempt to gloss over the CCRC’s multiple errors.
In July 2023, on the day Malkinson was cleared by the Court of Appeal, the Chairman said in a press release: ‘In the ever-changing world of forensic science, new evidence can come to light years after a conviction. We used our special powers to take advantage of DNA breakthroughs to find evidence that we considered could overturn this conviction.’
The next month, when the Court published its ruling, Pitcher made a further comment: ‘We are pleased that the CCRC’s work to match an alternative suspect on the DNA database has been so strongly referenced in the judgment.’
Neither statement made clear the vital scientific breakthrough achieved by Malkinson’s team at Appeal. Henley said: ‘It required Appeal to obtain the new DNA evidence that ultimately resulted in the further work that led to the referral by the CCRC. It would not have happened otherwise.’
Pitcher’s statements, he added, ‘claimed too much credit for the new DNA evidence, and took too little responsibility for the mistakes that were made.’ Henley’s review, published last year, concludes that the CCRC should not have presented Malkinson’s successful appeal in 2023 as an ‘unqualified success’ and criticisms of its failure to issue a prompt apology for its failings were ‘well-founded’.
Greater Manchester Police (GMP), on the other hand, whose investigation led to Malkinson being arrested and charged with the rape in 2003, apologised immediately after he was cleared. Assistant Chief Constable Sarah Jackson said: ‘We are truly sorry to Mr Malkinson that he is the victim of such a grave miscarriage of justice.’ Perhaps Pitcher will reflect on that mea culpa after complaining in her resignation letter how ‘unfair’ it was that GMP’s chief had not been criticised as much as she had been. The conduct of GMP officers who worked on the inquiry is currently under investigation, as it should be, but its current leaders are not facing the music – because they showed contrition.
Helen Pitcher came under attack because, as the panel found, she failed to demonstrate sound judgement during the Malkinson affair. Good leaders understand when the moment has come to admit mistakes and they take responsibility for the organisation’s failings. It took Pitcher nine months to apologise after Malkinson had been cleared.
This has been a bruising episode for the CCRC. It performs a vital public and legal service but its standing has been severely dented. The new chair should not be allowed to do the job on a part-time basis, as Pitcher was, juggling her role at the CCRC with other responsibilities including leading the Judicial Appointments Commission. It now needs someone fully committed, without competing priorities, who can reshape the organisation so it makes the right calls – as it failed to do so egregiously in the case of the modest and unassuming Andrew Malkinson.
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