ANDREW MALKINSON - BBC JULY 2004

 

  ANDEW MALKINSON COULD HAVE BEEN FREED TEN YEARS EARLIER - THERE IS A CULTURAL RELUCTANCE TO ADMIT OR REVIEW MISTAKES - CRIMINAL CASES REVIEW COMMISSION HAD A CLOSED MIND AS TO FAILING TO INVESTIGATE DNA ISSUES CORRECTLY - WITH GREATER MANCHESTER POLICE BEING PROTECTED FROM DISCOVERY OF CORRUPTION BY THE GOVERNMENT WHITEWASH ORGANIZATION IN DENIAL OF ARTICLE 6 THAT IS NOT FIT FOR PURPOSE - HENCE AN ARTICLE 13 VIOLATION JUST BY BEING IN EXISTENCE - DNA EVIDENCE WAS FOUND BY APPEAL, A LEGAL CHARITY

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It is alleged that the agenda of the CCRC is not to refer sexual cases back to the Court of Appeal for fear of undermining the Justice System, where Article 6 was violated in the Sexual Offences Act and Police Codes of Conduct. Suspects are to be treated as guilty, with no need to look for exonerating evidence at the scene of crimes. Especially important if the police are themselves suspects for aiding and abetting planning crimes. And their victim is an activist.

 

 



BBC NEWS 18 JULY 2024 - MINISTER SEEKS TO SACK CHAIR OF MISCARRIAGES ON JUSTICE REVIEW BODY

The justice secretary is to seek the sacking of the chair of the Criminal Cases Review Commission (CCRC) following the publication of a review into the case of Andrew Malkinson.

Shabana Mahmood said Helen Pitcher - who heads up the body responsible for investigating alleged miscarriages of justice - was "unable to fulfil her duties".

An independent review published on Thursday found Mr Malkinson, who waited 20 years to be exonerated of rape, was completely failed by the key agency reviewing his case.

The damning report concludes he could have been freed five years after receiving a life sentence for a 2003 rape.

Mr Malkinson welcomed the news, saying Ms Pitcher had "proved herself utterly unfit to lead the CCRC".

The report revealed the body’s investigators and leaders failed to follow up evidence of innocence right up to 2022.

The justice secretary said the findings were "sobering".

"It is my firm view that Helen Pitcher is unfit to fulfil her duties as chair of the CCRC. I have therefore begun the process to seek her removal from that position," Ms Mahmood said.

"My thoughts are with both Andrew Malkinson and the victim of this horrific crime."

In response Mr Malkinson, who spent 17 years in jail, said he hopes "this will be followed with a complete overhaul" of the CCRC.

"Ms Pitcher's discredited senior leadership team should also now go, and be replaced with people who are serious about fighting miscarriages of justice," he said.

She has apologised in a statement. She is unavailable to be interviewed today for personal reasons.

But the Guardian newspaper reports Ms Pitcher has said she is the "best person" for the job, and has no intention of resigning from her post.

 

 

 

 

 

 


A SERIES OF MISSED OPPORTUNITIES

Mr Malkinson was accused in 2003 of raping a woman in Greater Manchester. He was convicted and jailed for life despite no DNA linking him to the crime.

He was convicted on contested eyewitness accounts, even though he did not resemble a description of the suspect or bear a deep facial scratch injury that the victim had inflicted on her attacker.

Three years after he was jailed, forensic scientists, using new DNA techniques, found key evidence from an intimate part of the victim’s clothing that pointed to a different unknown man.

By 2009, Greater Manchester Police, the Crown Prosecution Service and the CCRC all knew of this lead - but the miscarriages agency rejected the first of Mr Malkinson’s three pleas for help.

In his report, Chris Henley KC said this was the first in a series of missed opportunities by the CCRC.

In 2013 the agency failed to review the file again, despite the Court of Appeal exonerating another man of rape in near-identical circumstances.

It then dismissed Mr Malkinson’s further plea for help in 2019 - and considered turning him down a third time in 2022.

The report finds that agency only referred the case back to judges after Appeal, a legal charity acting for Mr Malkinson, won a battle to have new DNA analysis conducted. Mr Henley said he had no confidence the CCRC would have ever done the work itself.

“It had taken 20 years to put this appalling miscarriage of justice right,” said Mr Henley.

“This case demonstrates a deep-seated, system-wide cultural reluctance, which starts right at the top in the Court of Appeal, to acknowledge our criminal justice system will on occasion make mistakes.

“It is not by any standard a success, or a demonstration that things are working properly, that Mr Malkinson had to wait 20 years to be exonerated.”

Mr Henley’s report reveals one CCRC case manager dismissed Mr Malkinson’s arguments without even reading the most important evidence. This mistake of not obtaining the police file was repeated another two times.

If case workers and leaders had done their job properly, he said, the Court of Appeal could have reconsidered Mr Malkinson’s conviction in 2009.

He said that statements by the CCRC’s chair, Helen Pitcher, had not properly reflected the agency’s failings and criticisms of the CCRC’s decision not to apologise immediately to Mr Malkinson after he exonerated in 2023 were “well-founded”.

“There should be a wholehearted apology made by the CCRC to Mr Malkinson,” said Mr Henley.

“The CCRC failed him. It required [miscarriages of justice charity] 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.”

Earlier on Thursday, Andy Malkinson had called on Helen Pitcher to resign - or for the government to sack her.

“This report lays bare how the CCRC obstructed my fight for justice and cost me an extra decade wrongly imprisoned,” he said.

“The finding that in 2022 the CCRC was considering rejecting my case for a third time, despite the compelling DNA evidence presented by my legal team, shows that the body is biased through and through.

"It needs to be torn down and completely rebuilt.”

“If Helen Pitcher is truly sorry, she’ll step down. The CCRC’s delay in publishing this report and its decision to conceal the names of the personnel whose actions caused me so much suffering is shameful.”

After Mr Malkinson’s exoneration, BBC News sought an interview with Ms Pitcher but the CCRC said she couldn’t speak publicly until after this report had been published. Today, she is unavailable for interview for personal reasons.

In a statement accompanying the report, Ms Pitcher said: “Mr Henley’s report makes sobering reading, and it is clear from his findings that the Commission failed Mr Malkinson.

“For this, I am deeply sorry and wish to offer my sincere regret and an unreserved apology on behalf of the Commission.

“Mr Henley's report includes nine recommendations, and the Commission has already begun work to implement them.

"Nobody can begin to imagine the devastating impact that this wrongful conviction has had on Mr Malkinson’s life, and I am deeply sorry for the additional harm caused by our handling of the case.”

 

 

 

 

 

 

A STAR - Chris Henley KC is part of all that is good within the British criminal justice system.

 

According to the Mountford Chambers website, Chris Henley KC is one of the busiest criminal silks in the country, highly regarded in all areas of serious crime, particularly murder, fraud and terrorism. His work ethic, total commitment, empathetic and tenacious approach to all his cases has marked him out from his earliest years in practice.

He has appeared in many leading cases over the years including the 21/7 terror attacks, the Damilola Taylor trial, the Daniel Morgan murder trial, the Jemma Beale trial, the ‘Babes in the Wood’ perjury trial and many cases prosecuted by the SFO. He acted for the Trustees of the Didsbury Mosque/Manchester Islamic Centre at the Manchester Arena Inquiry.

Chris is a highly effective, intelligent advocate, with a confident, assured manner. He gets to grips with the most complex cases very rapidly, distilling the key issues and offering strategic advice at an early stage, often pre-charge. He is approached to appear at inquests, professional disciplinary hearings, and to provide advice to individuals facing a very wide range of criminal allegations. The Criminal Cases Review Commission has engaged him to lead the review of the Andrew Malkinson case.

In 2018/2019 he was chosen by criminal barristers across the country to lead the Criminal Bar Association during one of the most challenging periods in the profession’s history, achieving the first fee rises for defence and prosecution advocates for 20 years, and securing the Government’s commitment to the Bellamy Review of Criminal Legal Aid (CLAR) which ultimately resulted in further increases to fees of 15%.

 

 



APPEAL.ORG.UK - REPORT REVEALS MISCARRIAGE OF JUSTICE REVIEW BODY CONTEMPLATED REJECTING ANDREW MALKINSON'S CASE FOR A THIRD TIME

Report reveals miscarriage of justice review body contemplated rejecting Andrew Malkinson’s case for a THIRD time

- DNA evidence cleared Mr Malkinson of rape in 2023 after he spent over 17 years wrongfully imprisoned

- Chris Henley KC levels ‘severe criticism’ at the Criminal Cases Review Commission, finding that the body should have granted Mr Malkinson a fresh appeal as far back as 2009

- Internal documents show that in 2022 the CCRC was contemplating rejecting Mr Malkinson’s case AGAIN despite ‘compelling’ DNA evidence

- Report personally criticises CCRC boss Helen Pitcher for refusing to apologise sooner and presenting its handling of the case as an ‘unqualified success’


Press release and briefing – APPEAL – 18 July 2024

An independent review has levelled “severe criticism” at the miscarriage of justice review body over its handling of the case of Andrew Malkinson, who spent over 17 years in prison for a crime he did not commit.

A 105-page report by Chris Henley KC, published today, found that the Criminal Cases Review Commission (CCRC) could have spared Mr Malkinson a decade of wrongful imprisonment if it had not “missed” the opportunity to send his case back to the Court of Appeal in 2009, when DNA evidence made clear “he might be innocent”.

Mr Malkinson was wrongly convicted of a stranger rape in 2004. His 2009 and 2018 applications to the CCRC were rejected, with the body finally granting him a new appeal in January 2023. In July last year the Court of Appeal overturned Mr Malkinson’s conviction on the basis of DNA evidence implicating another man and police disclosure failings.

Mr Malkinson has responded to Mr Henley’s findings by calling for the CCRC to be “completely rebuilt” and its Chair Helen Pitcher, who is personally criticised in the report, to resign or be sacked: “If Helen Pitcher is truly sorry, she’ll step down and let someone serious about fighting miscarriages of justice take charge.”


CCRC ‘missed’ 2009 chance to correct miscarriage of justice

Mr Henley’s report found that there was “a complete failure” by the CCRC to “get to grips with the potential significance” of new DNA evidence which it was made aware of in 2009, with the result that the body “missed” the opportunity to put right the miscarriage of justice.

The KC criticised the CCRC’s 2012 stance that the DNA breakthrough did not meet the legal test for granting Mr Malkinson a new appeal hearing, writing that the CCRC “accepts that the new DNA evidence means that Mr Malkinson might have been wrongly convicted, that he might be innocent, but nevertheless maintains the position that this does not assist him”.

“In my view if the jury had heard that there was unaccounted for male DNA in that specific location on the vest top, that it was not Mr Malkinson’s DNA and that all attempts at elimination had proved unsuccessful this might have made a difference to the jury’s verdict. This is not a difficult conclusion to reach,” Mr Henley added.

Mr Henley also criticised the CCRC for failing to uncover disclosure failures – which were so significant the Court of Appeal ruled they provided a separate basis for overturning Mr Malkinson’s conviction – during its first review, stating: “I am in no doubt that the police file should have been obtained”.

Mr Malkinson was not released from prison until December 2020 – meaning that if the CCRC had granted his first application in 2009 he could have been spared a decade of wrongful imprisonment.

CCRC considered rejecting case again despite ‘compelling’ DNA evidence

Case records newly unearthed by Mr Henley show that in 2022 the CCRC was even contemplating rejecting Mr Malkinson’s case for a third time.

By that point, Mr Malkinson’s legal team at the charity APPEAL had presented the CCRC with new DNA test results which, in Mr Henley’s words, “provided a compelling basis to conclude that another man was responsible for the brutal attack”.

Nevertheless, internal comments by CCRC personnel record them taking the view that it was “likely” these DNA findings “could not form the basis of a referral of the case” to the Court of Appeal, unless the alternative suspect could be identified through a match on the National DNA Database.

Mr Henley criticised this stance, writing: “Fortunately for Mr Malkinson there was a match… but if there had not been there might have been no referral.” He stated that “represents a failure to understand the test to be applied to these cases” on the part of the CCRC, adding that “the absence of a match is not a bar to referral.”


CCRC ‘too cautious’ and ‘must aspire to capturing more miscarriages of justice’

Mr Henley also criticised the CCRC for not making disclosure failures unearthed by APPEAL “a second freestanding ground of referral” when it finally sent Mr Malkinson’s case to the Court of Appeal in 2023.

“It concerns me that if the new DNA evidence had not been obtained and only the disclosure failures… had come to light, the CCRC would not have made the referral. This suggests… that the CCRC is taking too cautious an approach. This needs urgently to change,” Mr Henley wrote.

He added: “In this case the Court of Appeal in fact went further than the CCRC, identifying grounds to quash the convictions which the CCRC had failed to identify with the same clarity.”

“The CCRC must learn from this. It must aspire to capturing more miscarriages of justice… The question should always be ‘might this be a miscarriage case’ rather than an exercise in thinking of reasons why the Court of Appeal might reject the referral,” Mr Henley wrote.

CCRC failed to learn lessons from mishandling of ‘similar’ case

Mr Henley’s review also found that Mr Malkinson’s exoneration was delayed because the CCRC failed to learn lessons from its handling of another case that “undoubtedly bore similarities”.

In 2013, the Court of Appeal overturned Victor Nealon’s attempted rape conviction, which like Mr Malkinson’s “depended wholly on identification evidence”. The CCRC had twice previously rejected Mr Nealon’s case, and it was left to his lawyers to arrange forensic tests which revealed the presence of another man’s DNA on the victim’s clothing.

“In my view Mr Malkinson’s conviction would have been quashed almost 10 years earlier than it was, if the Nealon judgment had been properly understood and followed,” Mr Henley said.


CCRC boss personally criticised for failure to apologise sooner

Immediately after he was cleared by the Court of Appeal in July 2023, Mr Malkinson launched a petition calling on the CCRC’s Chair Helen Pitcher to apologise to him.

Over 160,000 people signed the petition, but Ms Pitcher refused to issue an apology until April 2024. By that point, she had seen Mr Henley’s report, which said: “There should be a wholehearted apology made by the CCRC to Mr Malkinson. The CCRC failed him.”

Mr Henley condemned Ms Pitcher for holding off on apologising, stating: “Criticisms of the CCRC’s failure to apologise in 2023 are well-founded.”

Mr Henley also criticised public statements made by Ms Pitcher in the wake of Mr Malkinson’s exoneration, finding she “claimed too much credit for the new DNA evidence, and took too little responsibility for the mistakes that were made”.

He wrote: “The quashing of Mr Malkinson’s conviction in 2023 should not have been presented as an unqualified success… the CCRC was wrong to appear… to take full credit for the re-testing that had taken place… All the crucial initial tests… had been carried out by APPEAL without the assistance of the CCRC.”

Mr Henley added: “Similarly, the work done which resulted in the discovery of undisclosed [evidence] was the result of the efforts of APPEAL. The body charged with investigating potential miscarriages of justice, with statutory powers to obtain relevant material, had failed to discover [it]”.


Responding to Mr Henley’s report, Andrew Malkinson said:

“This report lays bare how the CCRC obstructed my fight for justice and cost me an extra decade wrongly imprisoned.

“The finding that in 2022 the CCRC was considering rejecting my case for a third time, despite the compelling DNA evidence presented by my legal team, shows that the body is biased through and through. It needs to be torn down and completely rebuilt.

“I’m pleased Mr Henley has condemned the CCRC’s Chair for putting off her apology and cynically trying to spin the CCRC’s mishandling of my case as a success. If Helen Pitcher is truly sorry, she’ll step down and let someone serious about fighting miscarriages of justice take charge.

“If Helen Pitcher and her leadership team won’t resign after a scathing report like this, they should be sacked.”

“The CCRC’s delay in publishing this report and its decision to conceal the names of the personnel whose actions caused me so much suffering is shameful. Both the public and I deserve transparency and accountability, but the CCRC is more concerned with protecting its people from criticism.”

Responding to Mr Henley’s report, James Burley, who led APPEAL’s investigation into Andrew Malkinson’s case, said:

“This report is utterly damning. It details a catalogue of failures by the CCRC, from it missing the chance to correct this miscarriage of justice way back in 2009 to its leader last year shamelessly trying to spin her organisation’s disgraceful mishandling of Andy’s case as a success.

“Mr Henley’s report makes clear that the CCRC is not investigating and deciding cases properly. No one can doubt now that the CCRC is a broken safety net which sets the bar unreasonably high for innocent prisoners trying to clear their names. The CCRC must be completely overhauled.

“The new Justice Secretary should bring in a fresh leadership team at the CCRC that is serious about rooting out wrongful convictions. Mr Henley’s report is personally devastating for CCRC Chair Helen Pitcher, and no right-minded person can have confidence in her leadership.

“It says a lot about the CCRC’s commitment to transparency that it has withheld from Andy the names of the CCRC personnel whose decisions cost him so many extra years wrongly imprisoned.”

 

 

 

Evil comes in many forms, not only those who engineer false conviction, but also those who seek to undermine the criminal justice system by whitewashing sexual offences, and not allowing referral to the Court of Appeal

 

 

Who is the criminal, the police who gained the fraudulent conviction, Helen Pitcher for burying (not looking for) the evidence that could have freed Mr Malkinson ten years earlier, or the Government for not scrapping a system that is open to corruption? A simple apology for taking 10 years from a life is far from sufficient by way of compensation. Henry the Eighth would have loped off her head.

 

 

 



NOTES TO EDITORS:

APPEAL is a charity and law practice that fights miscarriages of justice and demands reform. www.appeal.org.uk
Please be aware that this case is subject to reporting restrictions under the Sexual Offences (Amendment) Act 1992 and the Contempt of Court Act 1981.

 

The Criminal Cases Review Commission (CCRC) is a statutory body responsible for reviewing suspected miscarriages of justice. It can refer convictions to the Court of Appeal where it considers there is a “real possibility” it will be overturned. Since its inception, it has rejected over 97% of the applications it has considered.

 

Mr Malkinson is not presently available for interviews in addition to those already scheduled. Requests to interview APPEAL staff can be made by emailing charlotte@appeal.org.uk.

 

Mr Malkinson’s case was featured in a BBC documentary titled The Wrong Man: 17 Years Behind Bars, which was broadcast on BBC Two in June and can still be seen on iPlayer here. Requests to use extracts from the documentary, including Mr Malkinson discussing his experience of the CCRC can be made directly to Clips@bbc.co.uk, or can be lifted directly from this page: https://www.bbc.co.uk/programmes/m001zywl. A clip of Mr Malkinson discussing the CCRC’s mishandling of his case can be found here: https://www.bbc.co.uk/programmes/p0j84xxz.






 

 

A barrister himself, Sir Keir Starmer will know how awful the CCRC Report is, and the impact on the British justice (or lack of) system. His Cabinet has a high proportion of legally qualified staff. We hope that the Criminal Cases Review Commission is either scrapped or forced to refer older cases that they have no reviewed properly, back to the Court of Appeal.

 

 

 


 

LAW SOCIETY GAZETTE

The chair of the Criminal Review Cases Commission has unreservedly apologised to Andrew Malkinson, who spent 17 years in prison for a rape he did not commit, after a KC-led review found the commission failed him. This afternoon, lord chancellor Shabana Mahmood said she has begun the process to remove Helen Pitcher as the commission's chair.

Malkinson’s first two applications for the CCRC to use its statutory powers to refer his case back to the Court of Appeal were refused. The third application resulted in a referral to the Court of Appeal in January 2023. Six months later, his conviction was quashed.

The CCRC commissioned Chris Henley KC to review the organisation’s handling of the case. Henley’s 130-page report was published today.

On the first application, Henley said there was a ‘complete failure to get to grips with’ the potential significance of new DNA evidence. On the second application, which charity APPEAL submitted on behalf of Malkinson, Henley said it was disappointing that the CCRC did not set up a meeting to understand what APPEAL was proposing to do in relation to fresh DNA testing.

In a statement, Henley said: ‘Mr Malkinson spent many years in prison fighting this appalling miscarriage of justice. In 2009 he turned to the CCRC but they failed him. Lessons must be learned. It is almost impossible to believe that this is the only case that has not been handled properly. The CCRC must make every possible effort to identify other applications where mistakes might have been made, and immediately implement the recommendations made in my report.’

CCRC chair Helen Pitcher said: ‘Mr Henley’s report makes sobering reading, and it is clear from his findings that the commission failed Mr Malkinson. For this, I am deeply sorry and wish to offer my sincere regret and an unreserved apology on behalf of the commission. I want to assure everyone of our commitment to learn from this. Mr Henley's report includes nine recommendations, and the commission has already begun work to implement them.'

Henley's findings have prompted calls for the CCRC to be overhauled.

James Burley, who led APPEAL's investigation into the Malkinson case, said: 'No one can doubt now that the CCRC is a broken safety net which sets the bar unreasonably high for innocent prisoners trying to clear their names. The CCRC must be completely overhauled.'

Hickman & Rose solicitor Toby Wilton, who is representing Malkinson in a public inquiry on his wrongful conviction, said: 'It is vital that the CCRC is held to account for its shocking failures in this case and completely overhauled.'

Mahmood said this afternoon: 'It was sobering to read Chris Henley KC’s findings. My thoughts are with both Andrew Malkinson and the victim of this horrific crime. Having studied Chris Henley’s report closely, it is my firm view that Helen Pitcher is unfit to fulfil her duties as chair of the CCRC. I have therefore begun the process to seek her removal from that position.'

According to the Guardian, Pitcher has rejected calls to resign. [She probably, allegedly, needed the income to underpin her overseas business aspirations, and did not want to rock the boat.]

 

 

 

 

 

 

How Helen Pritchard thinks a simple apology is sufficient for causing Andrew Malkinson to lose another ten years of his life. Ten years on top of seven years, because Greater Manchester police decided to frame him up, is an appalling indictment for the British justice system.

 

 

 

 

 

REFERENCE



https://appeal.org.uk/report-in-andy-malkinson-case-shows-miscarriage-of-justice-review-body-contemplated-rejecting-it-a-third-time/

https://www.theguardian.com/law/article/2024/jul/19/andrew-malkinson-ccrc-criminal-cases-review-commission-karen-kneller

https://www.mountfordchambers.com/profile/chris-henley-kc/

https://www.bbc.com/news/articles/c2q0gdd9v04o

https://appeal.org.uk/report-in-andy-malkinson-case-shows-miscarriage-of-justice-review-body-contemplated-rejecting-it-a-third-time/

https://www.theguardian.com/law/article/2024/jul/19/andrew-malkinson-ccrc-criminal-cases-review-commission-karen-kneller

https://www.mountfordchambers.com/profile/chris-henley-kc/

https://www.bbc.com/news/articles/c2q0gdd9v04o

 

 

 

 

 

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