Andrew Malkinson says improved DNA tests could have spared him years in jail

<span>Andrew Malkinson, who served 17 years in prison for a rape he did not commit, outside the Royal Courts of Justice in London, after being cleared by the court of appeal in July 2023.</span><span>Photograph: Jordan Pettitt/PA</span>
Andrew Malkinson, who served 17 years in prison for a rape he did not commit, outside the Royal Courts of Justice in London, after being cleared by the court of appeal in July 2023.Photograph: Jordan Pettitt/PA

Andrew Malkinson has said that an announced rollout of fresh DNA testing for contested rape and murder convictions should have happened a decade ago when the science first became available, a move that would have spared him years in jail.

Malkinson was cleared by the appeal court last year after spending 17 years in prison for a 2003 rape he did not commit. His exoneration came after new DNA testing linked another man to the crime.

The miscarriage of justice body for England, Wales and Northern Ireland, the Criminal Cases Review Commission (CCRC), announced on Monday it would be re-testing DNA in rape and murder cases from before 2016 that it has previously refused to refer to the court of appeal, and where DNA was a factor in identification.

The timing of the announcement comes ahead of the imminent publication of a major review of its handling of Malkinson’s case, which is expected to be critical.

Malkinson told the Guardian: “This announcement is a tacit acknowledgment of what I have long known: that there will be many other innocent people like me who have been denied justice by the CCRC.

“The CCRC should have launched this review 10 years ago, when the new DNA profiling technology became available. Their failure to do so – along with a string of other failures in the way they handled my case – forced me to spend extra years in prison for a crime I did not commit.”

A review of the CCRC’s work on his case led by Chris Henley KC is expected to be published in the coming weeks. It will examine, among other things, what opportunities were missed by the body to overturn his conviction.

The Guardian revealed last year that police and prosecutors knew in 2007 that forensic testing had found a searchable male DNA profile on the victim’s vest top that did not match Malkinson’s. Yet he spent another 13 years in prison. In that time the CCRC twice refused to refer his case for appeal, or to commission further forensic tests.

Malkinson was exonerated last year after fresh forensic work linked DNA on a sample of the victim’s clothing to male DNA on the police database. He has repeatedly called for the CCRC’s chair, Helen Pitcher, to be sacked and to return her OBE because of its role in prolonging his imprisonment.

Malkinson, now 58, said: “While I’m pleased to see that public pressure has forced the CCRC to look again at closed cases, I have little confidence in the integrity of this review so long as the CCRC’s current leadership – which still won’t apologise to me – remains in charge.

“A root and branch overhaul of the CCRC is needed, along with a much broader search for wrongly rejected cases. The CCRC’s failure to investigate cases properly isn’t confined just to missing DNA testing opportunities. In my case, they didn’t bother to obtain the police file – in which evidence enough to prove my innocence had been sitting all along.”

In 2013, DNA evidence exonerated another man, Victor Nealon, of an attempted rape for which he wrongly spent 17 years in prison. After that case, the CCRC said in an internal report that it should consider reviewing all similar cases, but no such review was undertaken for Malkinson. It took him another decade to clear his name.

The CCRC now says it has re-examined nearly 5,500 cases that it had previously rejected in the light of progression in DNA analysis techniques. It said that last summer it found that in about a quarter of the cases the identity of the offender was challenged, and it will focus on these.

It believes that in several dozen of these cases, DNA samples could be retested using more advanced techniques and is requesting additional government funding to carry this out as quickly as possible.

Malkinson and his legal team say the exercise could have begun in 2014 when DNA-17 testing became available, sparing Malkinson many more years in prison.

Emily Bolton, Malkinson’s solicitor at the law charity Appeal, said the announcement was “a stunning admission that after missing DNA testing opportunities in Andrew Malkinson’s case, the CCRC may also have denied justice to hundreds of other innocent people.”

However, she believes the review is “currently too limited in scope” as “it will not encompass potential miscarriages of justice in attempted murder and sexual assault cases, and it apparently will not be looking at missed opportunities to deploy other powerful DNA techniques such as Y-STR profiling.”

A CCRC spokesperson said: “The CCRC has been in operation for more than 27 years and scientific advances mean that there may be fresh forensic opportunities in cases that we last reviewed several years ago.

“This trawl is a significant task and is the first undertaken by us on this scale. It could take considerable time, requiring us to have substantial additional resources so we can balance this important work with our existing case reviews.

“Our purpose is to find, investigate and refer potential miscarriages of justice, so it is imperative that we take advantage of opportunities offered by scientific developments to do that.”