As Counsel for Mr Malkinson said at the Court of Appeal, this is not just a historic case but a historic injustice
By Leila Taleb, Barrister, Park Square Barristers
‘I came to the police in 2003 and told them I was innocent. They didn’t believe me.’
‘I came to the Crown Court in 2004 and told them I was innocent. They didn’t believe me.’
‘I came to this appeal Court in 2006 and told them I was innocent. They didn’t believe me.’
‘I applied to the Criminal Cases Review Commission. I told them I was innocent. They didn’t investigate and didn’t believe me. Not once, but twice.’
‘Today, we told this (appeal) Court that I was innocent and finally they listened.’
These are the words of Andrew Malkinson, a man wrongly convicted of rape, who has now had his conviction quashed. He is a man that everyone is talking about and for good reason.
He served 17 years behind bars and lived under licence rules for approximately 2 and a half years whilst being on the sex offender’s register.
Let’s not forget the facts
Anybody hearing of what happened to the victim of this rape would be horrified, and Lord Justice Holroyd indeed acknowledged the same. With much of the focus on Mr Malkinson, it is also incumbent on us not to forget the position of the victim of this heinous crime. The reality is that the real perpetrator has not been brought to justice and discussion of this appeal may have well re-traumatised her. Both Mr Malkinson and the victim are bound together in their own respective tragedies.
Now turning to the facts. In the early hours of 19th July all the way back in 2003, a mother of two was attacked from behind and forced to a secluded place. She did not know her attacker but was later able to give the police a description of him. He removed his shirt, restrained her on the ground, straddled her and choked her. He continued to apply pressure to her throat. In her efforts to resist she believed she scratched his face. She then lost consciousness. Whilst unconscious, she was raped both vaginally and anally. She suffered a number of serious injuries, one of them being that her left nipple was partially severed, which was consistent with a bite.
Notably, the victim picked Mr Malkinson out at an ID parade whilst two witnesses said they saw him nearby. But he never matched key parts of her description; she said the perpetrator had a smooth chest but Mr Malkinson had a hairy chest with tattoos. She said she scratched the face of the attacker (which became a highly contested topic at trial, referred to in the Judge’s summing up), but when police saw him the next day, there was no scratch on his face.
Mr Malkinson faced four offences: attempting to murder C (count 1); attempting to choke C (count 2, which was an alternative to count 1); vaginal rape (count 3); and anal rape (count 4).
On Monday 9th February 2004, the jury could not agree on a verdict. The Judge indicated that he would accept a majority verdict. On Tuesday 10th February 2004, a 10-2 verdict was reached, and Mr Malkinson was found Not Guilty of attempted murder but Guilty to the other three offences. He was sentenced to life imprisonment with a minimum term of 6 years and 125 days.
Throughout his years inside, Mr. Malkinson always maintained his innocence and therefore was not released as early as he could have been.
What did the Court of Appeal say this time round?
This was a trial whereby Mr Malkinson was convicted on identification evidence alone.
Lord Justice Holroyd, along with Mr Justice Goose and Sir Robin Spencer, ruled that Mr Malkinson’s conviction was no longer safe and quashed it on grounds 1-3. Ground 1 was in fact conceded by the Crown. The appeal failed on grounds 4-5.
The Court did not have to go further than ground 1 as this in and of itself meant the conviction was quashed. However, they decided, as was argued by counsel for the Appellant, that it was in the interests of justice to consider the other grounds to allow Mr Malkinson the widest vindication possible. The Judges relied on the case of Hamilton and others v Post Office Limited  EWCA Crim 21.
Ground 1, referred to by the CCRC, concerned the DNA evidence and the scientific advancements that had taken place since trial which implicates identification of another male. This ground did not require leave to appeal and was considered to be admissible as fresh evidence in accordance with section 23 of the Criminal Appeal Act 1968.
Ground 2 concerned the non-disclosure of the photographs of the victim’s hands. Failure to disclose these were considered highly material as they would have provided strong evidence that she did not damage any fingernail on her right hand, and that Dr Anderson’s note must have been inaccurate in that respect. As Such, C’s evidence of scratching would therefore not have been undermined and it is likely that the jury would have found that she was correct in her description of the attacker. The jury’s verdicts may therefore have been different had the photographs been disclosed.
Ground 3 concerned the lack of disclosure of the previous convictions of the two witnesses who said that they saw Mr Malkinson near the scene of the crime. The jury were misled in their belief that they were honest witnesses, when in actual fact they had a number of previous convictions between them including ones for dishonesty. If these had been disclosed, the defence could have casted doubt on their general honesty and affected the jury’s view as to whether they could be sure that Mr Malkinson was correctly identified. These witnesses provided the only evidence which the prosecution could rely on in support of C’s identification. Noticeably, the Judges ruled that if ground 3 stood alone, they would not regard it as sufficient to cast doubt on the safety of the convictions but the appeal succeeds when taken in conjunction with ground 2.
This clearly raises warnings of what can happen in cases that rest on identification evidence alone, as well as the catastrophic impact that disclosure failures can have on the outcome of criminal proceedings, which in turn can impact someone’s life.
Well, we did feed and house you in a cell for 17 years
The public spotlight cast on his case means that the government will likely be awarding Mr Malkinson compensation for the years he has spent inside (although not yet confirmed). Not only that, but the controversial reduction that is often applied to compensation to take account of free board and food he has had from his time in prison, will not apply. In fact, this rule has now been scrapped altogether, something described by the justice secretary Alex Chalk KC as ‘abhorrent’. It is indeed a rule that completely misses the point and rubs salt in the wound of those wrongly convicted. The liberty of these individuals has been wrongly taken. I am sure people like Mr Malkinson would have preferred to spend their time living a life choosing to pay rent and spending money on food as they so wish: something you cannot put a price on. It is not a very ‘human’ way of approaching the calculation of compensation.
Not everyone is afforded the same sort of financial vindication. A claim for compensation is the exception rather than the norm as articulated by Parliament. Most of those who have had their convictions quashed do not get compensated. The abolition of the ‘living costs deduction’ rule as mentioned above is a step in the right direction but it begs the question whether the restrictive s133 test for awarding compensation is fit for purpose.
Prove to us you are innocent!
So we come to the s133 test. What if I told you that in order for someone to make a claim for compensation, their conviction must have been reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence.
This is an impossible hurdle and has been described by many, quite rightly, as a reversal of the presumption of innocence. It is also arguably incompatible with article 2 and 6 of the ECHR.
Two men who have not been fortunate in their claims for compensation are Sam Hallam and Victor Nealon. As recent as 5th July 2023, the ECHR considered the very same question as to whether section 133 breaches the presumption of innocence.
It may well be a matter of time until the statutory test is revised, or the discretionary scheme is re-introduced. Before 2006, there were two schemes for compensating victims of the miscarriage of justice: the s133 statutory scheme and the ex-gratia scheme. This overhaul of the compensatory process was interpreted, at the time, as a rebalancing of the criminal justice system in favour of the victim.
In actual fact, it restricted access to financial remedy for the wrongly convicted. What the government did not pay their mind to is the fact that those who are wrongfully convicted are also victims. There is naturally a focus on the rehabilitation of those who have been convicted within our courts but there is no support for those who have been acquitted, with the presumption that an acquittal in and of itself is more than enough. The criminal justice system often washes their hands of them.
This, along with the opportunity to claim financial remedy, should change.
The aforementioned decision of the ECHR is expected to be announced next year. The fact that this has reached the ECHR is indicative of the fact that there are more Malkinsons out there. Let us hope that the criminal justice system learns from these mistakes. As Counsel for Mr Malkinson said at the Court of Appeal, this is not just a historic case but a historic injustice.
Leila Taleb, Barrister, Park Square Barristers