A man who served 17 years behind bars for a rape he did not commit has finally been cleared.
Andrew Malkinson, 57, was found guilty of the 2003 attack on a woman in Greater Manchester and the following year was jailed for life with a minimum term of seven years.
Mr Malkinson remained in prison for a further 10 because he maintained he was innocent and he was Wednesday cleared at the Court of Appeal.
At the time of Mr Malkinson’s trial, there was no DNA evidence linking him to the crime and the prosecution case against him was based solely on identification evidence.
The Crown Prosecution Service (CPS) had previously conceded Mr Malkinson’s conviction was unsafe because new DNA evidence points to another man.
The suspect can only be identified as Mr B, and the court heard there ‘must now be a real possibility’ he will be charged over the attack.
However, Mr Malkinson’s legal team also wanted the court to overturn his conviction on additional grounds, which Mr Henry summarised as ‘deplorable disclosure failures which mostly lay at the door of the Greater Manchester Police’.
The barrister said these failings, which were only uncovered 15 years after his conviction, meant Mr Malkinson did not receive a fair trial in 2004 and frustrated his previous challenge at the Court of Appeal in 2006.
Mr Henry told the court there was a ‘realistic possibility at trial that he would not have been convicted’ or that his appeal would have been successful in 2006.
He told Lord Justice Holroyde and the other two judges hearing the appeal: ‘(They were) grave and repeated disclosure failures during those proceedings that undermined any prospect of a fair trial.‘In more than one sense this is an historic case, but also an historic injustice.’
The barrister argued that police photographs, taken within hours of the attack but only disclosed in boxes of case documents years later, supported the victim’s evidence that she scratched her attacker and broke a nail on her left hand.
Had they been disclosed before Mr Malkinson’s trial, he argued, they would have corrected the evidence of a doctor who wrongly said the broken nail was on the victim’s right hand, and the trial judge would therefore not have directed the jury that they could ‘exclude’ the victim’s evidence about that if they were sure she was mistaken.
He said in written arguments the failure to disclose the photographs ‘deprived’ Mr Malkinson of his ‘strongest defence point – his lack of any facial injury’.
Mr Henry also argued that undisclosed evidence relating to two eyewitnesses to the attack – Michael Seward and Beverley Craig – meant the jury were ‘misled’ into thinking of them as honest and credible, when both had previous convictions for dishonesty offences and one was a long-term heroin user.
None of this was known to Mr Malkinson or his defence team at trial, which Mr Henry argued ‘violated his right to a fair trial’ by depriving him of information which would have helped him to counter the only evidence which supported the victim’s identification of him.
He said in written arguments: ‘At trial, they were presented as honest witnesses whose evidence could safely be relied on to buttress (the victim’s) identification of the appellant and the defence – deprived of their criminal histories – conceded both were honest.
‘t is now clear the jury were given a false impression.
‘Mr Seward and Ms Craig shared a history of untruthful, deceptive and dishonest behaviour, while Mr Seward was additionally a chronic heroin user, who had undisclosed police interactions on both the date he first emerged as a witness and on the date he identified the appellant.’
He added: ‘Previously undisclosed evidence shows the jury were misled into taking the honesty of these witnesses for granted, and deprived of important information going to their credibility and reliability.’
Mr Henry urged the court to determine the appeal on all of the grounds, saying he wanted to ensure ‘the widest possible vindication’ for Mr Malkinson, but also to ‘prevent others from suffering the same fate in future’.
The hearing continues and it is not known whether the judges will give a decision on Wednesday.
In a statement after the CPS and GMP announced their decision, Mr Malkinson said: ‘I’ve suffered incalculably for the last 20 years as a result of my wrongful conviction, and I continue to suffer each day.
‘I have always known I am innocent. Finally, the prosecution has acknowledged my conviction should not stand.
‘Of course, it is still the Court of Appeal’s decision to grant me justice. I sincerely hope they will give serious consideration to the disclosure failures which denied me a fair trial.
‘The police must be made accountable – no-one should have to suffer what I’ve been through.’
