A man who served 17 years behind bars for rape claims he didn’t do it – and that he now has the DNA evidence to prove his innocence.
Andrew Malkinson was 37 when he was found guilty of carrying out a violent sex attack in Greater Manchester in 2004.
He was convicted of assaulting a 33-year-old mum-of-two by the M61 motorway in Little Hulton, Salford.
Andy could have walked free from prison after six-and-a-half years – but refused the opportunity to cut his jail sentence short by admitting the offence.
He was 55 years old when he was eventually freed by the parole board in December aged 55 and is now campaigning to clear his name with the help of law charity APPEAL, reports the Manchester Evening News.
Andy’s legal team hailed a major breakthrough in the past week when a High Court judge agreed his case can proceed to the Criminal Cases Review Commission (CCRC).
The CCRC is an independent body that investigates miscarriages of justice and has the power to send cases back to the Court of Appeal where the conviction can be overturned.
Andy’s lawyers claim GMP carried out a flawed investigation and that not only do they need to admit what went wrong – but catch the real rapist.
The victim was attacked as she was walking from her boyfriend’s home in Wigan, to her own address in Bolton, in the early hours of July 19, 2003.
She was approached from behind as she walked down a lane by a man who dragged her down an embankment into some bushes near the M61 motorway.
The attacker strangled her until she lost consciousness before he raped and seriously assaulted her.
Ten days after the attack, Greater Manchester Police GMP) detectives put out an e-fit of the suspect based on the victim’s description.
In an appeal published in the Manchester Evening News at the time, the suspect was described as being in his early to mid 30s, with olive skin and measuring 5ft 8in tall.
He was ‘of medium build, with a flat stomach and defined chest muscles. He had a shiny hairless chest and was clean-shaven’, police said.
He had dark brown or black hair, which was thick and wavy and he spoke with a Bolton accent, the report added.
Two neighbourhood police officers in Little Hulton believed the description matched Andrew Malkinson.
They had spoken to him four weeks before the rape after stopping an off-road motorbike on which he was the pillion passenger.
They alerted senior officers and Andy, a security guard and former amateur boxer, was arrested.
He was charged after the victim then picked him out as her attacker in an identity parade.
Originally from Grimsby, Lincolnshire, Andy had been living in a flat close to where the woman was attacked.
Following a trial, Andy was found guilty of two counts of rape and attempting to choke, suffocate or strangle with intent to commit rape.
He was found not guilty of attempted murder.
The victim shouted ‘yes’ and wept as the guilty verdicts were read out at Manchester Crown Court.
She later told the MEN: “I’m so glad this monster is locked away. My only regret is that he isn’t locked away forever.
“I would like to thank the judge and jury for recognising the truth, and all the people involved with this case, especially the witnesses for their courage and most of all CID for their emotional support and their hard work.”
But APPEAL insist Andy is the victim of a grave miscarriage of justice and that there is a string of serious problems with his conviction.
For example, judge Michael Henshell, who presided over the trial, noted that many names had been put forward to police by members of the public after the e-fit appeal but ‘were never traced, including … more than one who had previous convictions for rape’.
Andy’s was the only name put forward who was ever put forward for an identity parade, where the victim went on to pick him out.
The victim told police she left a ‘deep scratch’ on the rapist’s cheek in her attempts to fight him off, but Andy was not seen to have had one at the time.
He is 5ft 11in – three inches taller than the description issued by police – and he does not have a Bolton accent.
APPEAL has also forced GMP to disclose that two witnesses who gave crucial evidence for the prosecution had 16 convictions for 38 offences between them, including for crimes of dishonesty.
This was not put before the jury who were told the witnesses were ‘honest’, APPEAL says.
In approving Andy’s case for a CCRC application, Deputy High Court judge David Pittaway QC wrote that GMP’s refusal to disclose the witnesses’ criminal history to APPEAL was an ‘arguable error in law’.
But in an explosive new development, APPEAL have also made a significant DNA discovery.
Although no forensics evidence was presented during the trial, samples were taken from the victim at the time which have been kept by police.
Tests funded by APPEAL last year showed that unknown male DNA was present among the samples – including one taken from under the victim’s fingernail.
And now APPEAL say further tests have proven none of the newly discovered male DNA belongs to either Andrew Malkinson, or the victim’s boyfriend at the time.
The legal team believe not only does this prove Andy is innocent – but that the real attacker is still out there.
APPEAL say the new evidence is ‘compelling’ – and lawyers are determined to exonerate Andy and expose the ‘systemic failures’ which they say caused him to be wrongly convicted.
Emily Bolton, APPEAL’s Director and Andy’s lawyer, is adamant that the new DNA evidence proves without doubt that he is innocent.
“The areas in which this unknown male’s DNA have been found are highly crime-specific,” she said.
“For instance, his DNA has been found under the victim’s fingernails on the hand she said she used to cause a deep scratch to the attacker’s face.
“There is no plausible explanation for this unknown male’s DNA being detected in these areas, other than him being the real attacker.”
Taking aim at the local police force, Ms Bolton added: “GMP should accept that they got the wrong man and do everything in its power to help put this terrible miscarriage of justice right.
“Rather than spend taxpayers’ money on a court battle aimed at avoiding having to hand over evidence, GMP should put resources into identifying and bringing to justice the real rapist.
“The people of Greater Manchester deserve a police force that prioritises public safety over covering up its past mistakes.”
“Andy spent over 17 years wrongly imprisoned because of serious failings by GMP, ” Ms Bolton added. “The force failed to disclose that two key prosecution witnesses, presented to the jury as honest, had criminal convictions for dishonesty offences.
“Given all this, and the compelling new DNA evidence, the very least GMP can do is support Andy’s application to the CCRC. The wheels of justice turn excruciatingly slowly, but if GMP lend their support it will speed up the process significantly.
“It is absolutely essential that GMP acknowledge what went wrong in the original investigation. If GMP refuses to learn lessons from its mistakes, how can the people of Greater Manchester have confidence in the force?
“Unless GMP addresses its failings in this case, I fear that we will see more examples where an innocent person is locked up while a guilty person is allowed to roam free.”
Although free from prison, Andy remains on the sex offenders register for life and with restrictions on his freedom.
“The trial that resulted in my wrongful conviction felt like a slow motion car crash – I just couldn’t think of any way to stop it,” said Andy.
“Thanks to APPEAL taking the police to court, we’ve discovered evidence that I hope means that the Court of Appeal will finally clear my name after spending more than 17 years in prison for a crime I did not commit.”
A GMP spokesperson said: “We acknowledge that the High Court of Justice, Queen’s Bench Division, has granted Mr Malkinson’s application for a judicial review of issues arising from this case.
“The implications of this decision are being considered by a Chief Officer, in consultation with our legal services advisor.
“It should also be noted that as a formal complaint has been registered with our Professional Standards Branch in relation to the actions of officers at the time of Mr Malkinson’s trial, it would be inappropriate to comment further at this time.
“We will of course cooperate with any further review of this case which may be conducted by the Criminal Cases Review Commission and we are keeping the Deputy Mayor of Greater Manchester updated with developments.”