The tragic case of Andrew Malkinson

It is beyond contention that in the early hours of the morning on 9 July 2003 a young woman ‘C’ was brutally attacked and raped during which she sustained serious injury including the severance of her nipple. She gave a description of her attacker whom she said she had scratched down the face with her left hand before losing consciousness. It is the kind of horrific experience that nobody should have to endure and the police would have been rightly motivated to trace the perpetrator.

However, it seems that Andrew Malkinson was identified as a potential suspect for no other reason than two police officers who had stopped him in traffic a few weeks earlier thought that he fitted the description given by C. They visited him at his place of work only hours after the incident had taken place. He did not have a scratch on his face. Moreover, he is heavily tattooed on both arms a fact not mentioned by C when she gave her description. Perhaps more significantly, given the shocking and depraved nature of the offence, Malkinson had no previous convictions other than for criminal damage and a passport offence in a different country. There was nothing in his background to suggest that he could be capable of offending of this nature.

On 2 August 2003 (the dates are significant), Malkinson was arrested on suspicion of having committed the offences. On this date, there was patently no credible evidential basis to arrest him. He was interviewed and he answered questions and put forward a complete denial stating where he was. On the following day, whilst he remained in police custody, an ‘identification procedure’ took place during which C apparently identified Malkinson as her attacker. Two other witnesses, Michael Seward and Beverley Craig claimed to have been out together in the early hours and seen a man and a woman later believed to be C and her attacker. On 3 August 2003, Beverley Craig also attended an identification parade. Whilst she initially picked out another suspect she apparently later changed her mind (after talking with a PC Twiss) and identified Malkinson. Michael Seward did not attend an identification parade for another 5 months, during which time he had seen descriptions of Malkinson. He also ‘identified’ Malkinson on 14 January 2004.

There was no other evidence against Andrew Malkinson save for the above ‘identifications’ which in a case of this nature, would in itself be highly unusual, if not virtually impossible. Significantly, there was no trace of Malkinson’s DNA on any exhibit.

The prosecution had sought to bolster its case by suggesting a) that he had used a condom and b) that C may have been mistaken about scratching her attacker's face and that this could explain why there was no evidence that Malkinson had ever sustained such an injury. In mild support for this contention, it read evidence from a doctor that suggested that she had damage to her right rather than left fingernail and hence may have been mistaken. Malkinson was convicted following a trial and sentenced to life imprisonment on 30 March 2004.

An appeal against his conviction before the Court of Appeal in 2006 was unsuccessful (R v Malkinson [2006] EWCA Crime 1891). Two subsequent applications to the Criminal Cases Review Commission ('CCRC') were also unsuccessful. Mr Malkinson’s legal team did not give up the ghost. Developments in the analysis of DNA samples created the basis for further examination of the samples taken in the case (which had fortunately been preserved). Cellular material extracted from C’s top and the inside of her bra revealed two male DNA profiles. One belonged to her boyfriend and the other to a man known only as Mr B. Mr B lived close to the crime scene, has relevant previous convictions and fitted the description originally given by C of her attacker much more closely than Malkinson.

Accordingly, armed with this new forensic evidence, the CCRC referred the case back to the Court of Appeal who admitted this ‘fresh’ evidence and quashed Mr Malkinson’s conviction (R v Andrew Malkinson [2023] EWCA 954). He had been released from prison on 18 December 2020, having served 17 years for a crime he did not commit.  As the Court of Appeal noted, "throughout those many years, the appellant adamantly maintained that he was innocent of the crimes and had been wrongly convicted. He did so in the knowledge that he was thereby delaying his release from prison."

But the story does not end there. How can Malkinson have been arrested for such a serious crime when there was no evidence against him (as was the case on 2 August 2003)? How then can that arrested man be subsequently positively identified by three witnesses when he did not commit that crime?  It seems that the answer lies in the remaining grounds of appeal against conviction. Those remaining appeal grounds centred largely on the failure by the prosecution to disclose material which patently undermined the case against Malkinson. Prior to examining the grounds, it is worth reminding ourselves that the disclosure of material which undermines a prosecution case or assists a defence case is a statutory duty of a prosecutor since the incorporation of the Criminal Procedure and Investigations Act 1996.

It transpires, in fact, Michael Seward and Beverley Craig are partners. In the original 2006 Court of Appeal judgment which failed to overturn Mr Malkinson’s convictions (albeit on different grounds) they were described as “for reasons which are not clear [having] left their house at 4.15am”. In fact, what the Court of Appeal in 2006 clearly did not know was that both Beverley Craig and Michael Seward also had previous convictions for dishonesty.  Seward was a heroin addict with a long list of previous convictions.  At the time, that he made his supposed identification of Malkinson he had been facing driving offences for which he “received lenient penalties” and was cautioned – as opposed to prosecuted- for possessing heroin and amphetamines.

This material was not disclosed prior to Malkinson’s trial, so his legal representatives were unable to cross-examine the only two supposedly independent witnesses against him. In fact, they were forced to accept their evidence at face value relying only on the mistaken nature of their identifications as opposed to there being any ulterior motives. Nor seemingly was this material disclosed to the Court of Appeal in 2006 (or certainly there is no record in that judgment of the existence of any such material).

To compound matters further the prosecution also failed to disclose photographic evidence which demonstrated that C had not damaged the fingernail on her right hand as their expert said that she had in evidence read before the Court. This material non-disclosure permitted the Crown to run the argument that the fact that Malkinson had no evidence of injury to his face (a compelling point in his defence) may be because C was mistaken as to whether she had done it as opposed to the fact that he may be innocent.

The tragic case of Andrew Malkinson has cast a spotlight on the fundamental flaws and lack of safeguards in the existing legislation dealing with the arrest and the visual identification of suspects and the disclosure of unused material. Regrettably, Mr Malkinson’s is not the only case where suspect identification has brought about unjust prosecution and the failure to disclose material has led to wrongful conviction. Let us hope that a public inquiry into his case ensures that such a catastrophic injustice can never happen again.

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