Opinion

The terrible power of the state to ruin lives was exposed by the case of Andrew Malkinson

Sonia Sodha
Sun, 20 August 2023 

Photograph: Jordan Pettitt/PA

We like to think that our criminal justice system locks up criminals and exonerates the innocent. A comforting working assumption; but the reality is more complex. High-profile miscarriages of justice – and the years some spend wrongfully in prison – are signs that the system sometimes gets it dreadfully wrong. One way of designing out wrongful convictions is through a demanding evidentiary threshold: to convict someone, juries need to be “sure” that a defendant is guilty. The flipside of this is that the probably-guilty have to be allowed to walk free.

But jury deliberations are only one part of the process and are certainly not sufficient to prevent serious miscarriages of justice, as the horrific treatment of Andrew Malkinson has shown. Malkinson last month had his rape conviction overturned by the court of appeal after 17 years in prison. His case has been plagued by serious failings at every turn. Greater Manchester police failed to disclose key evidence undermining the prosecution’s case against him to his defence team at the time of his trial, including key witnesses’ criminal convictions and important photographic evidence. This only came to light 15 years later, as a result of extensive legal action by the charity Appeal.

Three years after his 2004 conviction, the DNA of another man was found in a “crime specific” spot on the victim’s clothing by a nationwide forensic review. The police and the Crown Prosecution Service were notified, but a CPS lawyer said there was no need for further work unless the case was brought to appeal, and then his focus would be on “bolstering” the case against Malkinson.


Malkinson applied twice to the Criminal Cases Review Commission (CCRC) – the body charged with reviewing whether potentially unsafe convictions should be referred to the court of appeal – citing this new evidence, but the CCRC did not use its considerable investigatory powers to look at the original police file or request new DNA tests, and rejected his applications. It was only after the Appeal charity commissioned its own tests and uncovered the disclosure failures that Malkinson’s third application to the CCRC was successful, which resulted in the court of appeal overturning his conviction.

The issue starts with the way crimes are investigated and prosecuted

No one can give Malkinson back those 17 years. It is a reminder of the awesome power the state has to ruin people’s lives through corruption or incompetence. And it cannot be written off as a terrible but exceptional mistake. That such clear DNA evidence emerged makes Malkinson’s case unusual, but the fact that it still took him more than a decade to clear his name – with considerable time and resources invested by a campaigning charity – points to something seriously amiss in our justice system and the way it can produce, then fail to rectify, wrongful convictions.

The issue starts with the way crimes are investigated and prosecuted. The police’s role is to independently investigate crimes without prejudice; the CPS’s to make independent decisions about whether there is a strong enough case for the state to prosecute. They are not supposed to be “for” or “against” a defendant; they are statutorily obliged to disclose to the defence evidence that undermines their own investigation or case.

Yet even the most well-meaning police officers and CPS lawyers are human beings: it would take almost superhuman faculties not to become invested in a case against someone you really think did it. They operate in a system with shrinking resources, despite the greater volume of digital evidence involved in modern police work, and in a context of political pressure to increase conviction rates.

In our adversarial legal system, the main check on the independence of the police and the CPS is the defendant’s legal team. Yet deep cuts to legal aid mean that defence lawyers are operating on shoestring budgets, and there are serious questions about the quality of defence that people can access.

If a defendant has been wrongfully convicted, the appeals process is stacked against them. It can be difficult to find someone to represent you on legal aid in the first place. Some experienced lawyers and academics think that the court of appeal is itself too reluctant to quash wrongful convictions.

The CCRC was set up as an independent body to assess whether potentially unsafe convictions should be referred to the court of appeal, but it has been rendered unfit for purpose through funding cuts; worrying evidence hints at political interference. There is a lack of accountability over its decisions: the only potential challenge is through judicial review, an extremely expensive process. Malkinson is far from the only person turned down by the CCRC who went on to overturn their conviction. Victor Nealon’s application to appeal was rejected twice; his rape conviction was, like Malkinson’s, eventually overturned on the basis of DNA tests commissioned by his own legal team.

Ultimately, we have a justice system that embeds a naively optimistic view of human psychology

All this has led one former senior judge to argue that it has become harder than ever to challenge wrongful convictions; a damning assessment in light of the high-profile miscarriages of justice such as the Guildford Four and the Birmingham Six that led to the establishment of the CCRC in the first place.

Ultimately, we have a justice system that embeds a naively optimistic view of human psychology – it relies on the independence of the police, CPS lawyers and judges while real-world pressures and biases tug against that – while significant reductions in resourcing have eroded some of the checks and balance on their decision-making. Add a political desire to improve conviction rates and you have a recipe for more miscarriages of justice.

The penalties are severe, most obviously for the person wrongfully convicted. The government may have now changed the rules around financial compensation, so that someone no longer has it docked because of “savings” they made on housing as a result of being unjustly convicted, but people must actively prove their innocence in order to get any compensation at all; Nealon did not qualify. But there are also penalties for the victim, who has to learnthat her attacker has gone unpunished, and for society at large, because the real perpetrator remains free to reoffend.

While it is poor, minoritised and overpoliced communities who disproportionately suffer the consequences, miscarriages of justice can affect anyone. Making sure that those who stand accused of terrible crimes get due process may not be a popular cause, but it is fundamental not just to the rule of law but to public faith in the justice system.

• Sonia Sodha is an Observer columnist