New DNA breakthrough leads to rape and assault conviction being sent back to the Court of Appeal

The Criminal Cases Review Commission (“CCRC”) has referred a man’s rape and assault convictions to the Court of Appeal after new DNA testing has revealed a potential alternative suspect.

Andrew Malkinson was sentenced to life imprisonment after being convicted of rape in 2004. After spending 17 years in custody, he was released from prison in December 2020, on licence.

In April 2021, Mr Malkinson’s representatives from APPEAL approached the CCRC with new DNA evidence. In consultation with experts, the CCRC devised a comprehensive forensic strategy to obtain the best possible evidence using modern DNA techniques.

As a result of scientific developments, experts instructed by the CCRC have now obtained a DNA profile on the victim’s clothing which matched another man on the National DNA Database. In light of this, the CCRC has decided that there is a real possibility that the Court of Appeal will quash Mr Malkinson’s convictions.

Mr Malkinson had previously applied to the CCRC twice before, but the first application was made at a time before modern DNA evidence was available and the second concentrated on issues concerning the identification witnesses.

CCRC Chairman Helen Pitcher OBE said:

“This referral highlights the importance of the CCRC to our criminal justice system. New evidence can come to light years after a conviction, and in this case years after our first review of Mr Malkinson’s application.

“In the ever-changing world of forensic science, it is crucial that there is an independent body who can undertake these enquiries and send cases of concern back to court.

“Following Mr Malkinson’s application, we used our special powers and expertise to re-examine this case, instructing experts to undertake state of the art DNA testing.

“The new results raise concerns about the safety of these serious convictions. It is now for the Court of Appeal to decide whether they should be quashed.”

The victim in this case was attacked whilst walking home alone in the early hours of 19 July 2003. There was no DNA or other forensic evidence linking Mr Malkinson to the crime and the prosecution case relied mainly on identification evidence.

Following a trial at Manchester (Crown Square) Crown Court, Mr Malkinson was convicted, by majority verdict, on 10 February 2004.

The new evidence obtained by the CCRC has improved upon the results obtained previously, enabling a search of the DNA database to be carried out.

The new DNA evidence found by the CCRC does not prove that the man on the DNA database committed these or any offences. The CCRC has, however, passed the new DNA evidence to Greater Manchester Police for them to consider further.

Ends.

[Update 19/08/2023 – Mr Malkinson’s conviction was quashed on 26 July 2023 and the judgment was delivered on 7 August 2023]

Notes to editors

• Mr Malkinson previously applied to the CCRC in 2009. During that review, the CCRC reviewed the DNA analysis that had been undertaken previously and was advised by the Forensic Science Service that there was no real prospect of further testing producing any significant new evidence. Since the conclusion of that review in 2012, there have been significant improvements in forensic science, including the DNA testing which has led to this referral. That first review also concluded prior to the matching profile being added to the DNA database. A further application made in 2018 focussed on the identification witnesses.

1. The CCRC is an independent body set up under the Criminal Appeal Act 1995. It is responsible for independently reviewing suspected and alleged miscarriages of criminal justice in England, Wales and Northern Ireland. It is based in Birmingham and is funded by the Ministry of Justice.   
2. There are currently 11 Commissioners who bring to the CCRC considerable experience from a wide variety of backgrounds. Commissioners are appointed by the monarch on the recommendation of the Prime Minister in accordance with the Office for the Commissioner for Public Appointments’ Code of Practice.   
3. The CCRC usually receives around 1,400 applications for reviews (convictions and/or sentences) each year. Since starting work in 1997, the CCRC has referred around 3% of applications to the appeal courts.   
4. The CCRC considers whether, as a result of new evidence or argument, there is a real possibility that the conviction would not be upheld were a reference to be made. New evidence or argument is argument or evidence which has not been raised during the trial or on appeal.  Applicants should usually have appealed first. A case can be referred in the absence of new evidence or argument or an earlier appeal only if there are “exceptional circumstances”.   
5. If a case is referred, it is then for the appeal court to decide whether the conviction is unsafe or the sentence unfair.   \
6. More details about the role and work of the Criminal Cases Review Commission can be found at www.ccrc.gov.uk. The CCRC can be found on Twitter @ccrcupdate and Instagram the_ccrc