‘The Andrew Malkinson Scandal Exposes a Justice System that Fails the Wrongly Accused’

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The shocking case of Andrew Malkinson, who spent 17 years in prison for a rape he did not commit, only to have his conviction overturned earlier this summer, has highlighted deep flaws in how such cases are treated by the British legal system.

Malkinson’s case also highlights deep flaws in how such cases are reported. The tendency in the British press, when reporting such miscarriage of justice cases, is to treat them as ‘one-off aberrations in a justice system that otherwise runs smoothly’.

However, Malkinson’s case highlights that this simply isn’t the case. As a long-term observer of the Criminal Cases Review Commission (CCRC), which was set up more than 25 years ago in the wake of terrible miscarriages of justice such as the Birmingham Six, Guildford Four, Cardiff 3 and Stefan Kisko, it is clear that the problems of the organisation remain complex and deep-rooted.

In recent weeks we learned that not only had the CCRC rejected Malkinson’s application twice, but they were aware of the DNA evidence that would ultimately exonerate him at the time of his first application in 2009.

The scandal has prompted two inquiries – one instigated by the miscarriage of justice watchdog itself to be headed by Chris Henley KC and one launched by the justice secretary Alex Chalk. It has also prompted media interest in our dysfunctional system of criminal appeals (itself the subject of an ongoing Law Commission review). However, a Guardian editorial highlighting the scandalous lack of compensation arrangements for the victims of wrongful conviction somewhat blithely asserted that ‘thankfully’ miscarriages of justice were ‘rare’ these days. How they could possibly know this?

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One job that the CCRC has performed well over its 25 years is deflecting attention from other parts of our justice system which prevent the correction of miscarriages – notably, the Court of Appeal. The CCRC’s relationship with appeal judges has been described as a ‘statutory stranglehold’ – the watchdog can only refer cases back to the courts where it believes that there is a ‘real possibility’ that the judges will overturn that conviction. An increasingly conservative Court of Appeal has led to an increasingly timid watchdog.

Chalk has said that Andrew Malkinson deserves “thorough and honest answers” over why it took so long to uncover this “atrocious miscarriage of justice”. It’s tempting to say that the CCRC’s problems simply stem from his own government’s chronic underfunding of the watchdog. A 2021 parliamentary investigation into the organisation concluded that of all the parts of our cash-strapped ‘broken’ justice system, the ‘safety net’ organisation had  borne the brunt of austerity cuts.  

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A Broken Safety Net

This isn’t a party-political point (and the problems aren’t just about money). The CCRC has been seriously underfunded for more than half its life. I recall interviewing a former CCRC chair, Professor Graham Zellick, in 2008 when he told me his staff were ‘angry’ and ‘dispirited’ because of the funding crisis. His CCRC had a budget of £8 million. In 2019 its budget fell to £5.93. 

When Malkinson complained this summer of the CCRC’s “attitude problem”, he said that the group had “not communicated with me since my conviction was overturned. We found out that they were launching an inquiry into my case from a journalist because she had received a press release.”

Press attention has turned to the seemingly absent CCRC chair, Helen Pitcher who has declined media interviews.  The Guardian found a photograph on LinkedIn of Pitcher in Montenegro ‘barefoot outside a mussels bar’ promoting her holiday home business – the story was picked up by the Telegraph who also reported that she had eight other jobs. 

Pitcher’s many business interests came to light in a session before the House of Commons’ justice committee at the start of this year when MPs signed off her appointment as chair of the Judicial Appointments Commission. The JAC was set up by New Labour in 2006 to replace the discredited ‘tap on the shoulder’ mode of judicial appointment.  

At the time, Dr Hannah Quirk, a reader in criminal law at Kings College London and former CCRC case review manager, and I argued that spending half her week running the group charged with investigating these intractable cases that (often involving judicial error) and the other half doling out jobs was a blindingly obvious conflict of interest. One of Pitcher’s first tasks as JAC chair was to identify a replacement for the head of the criminal courts, Lord Burnett of Maldon. Lord Burnett was on the panel of judges who identified Pitcher as their preferred candidate. Cosy? 

When the CCRC was established in 1997, it was a radical proposition – the first ever state-funded miscarriage watchdog.  The investigative journalist and presenter of BBC’s pioneering Rough Justice programme (and former CCRC commissioner) David Jessel called its creation ‘the nationalisation of zeal, the taking of fervour into public ownership’. 

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That excitement didn’t last long, however. Some 13 years in there were signs that the CCRC was struggling. In 2016 the watchdog sent just a dozen cases back to the Court of Appeal and 13 in 2017 – less than one per cent of the number of people applying to the group (down from an average of 33 referrals a year over its first 20 years).  

The CCRC is an organisation with just one job: to correct miscarriages of justice. Its response to well-placed concerns about the decline in referrals (which ultimately led to the 2021 parliamentary inquiry and the ongoing Law Commission review) was dispiriting and bizarre. In her first statement as chair of the CCRC, Pitcher said that referrals were ‘not the be all and end all’; and chief exec Karen Kneller went so far as to insist that applicants were ‘more concerned with waiting times’ than having their convictions overturned. 

Last year, Jacob Rees Mogg opened the new CCRC’s ‘office hub’, a curious choice for a justice watchdog. The CCRC introduced a ‘remote first’ policy and staff including their investigators are only expected to be physically present for ten to 12 days a year. One criticism of the CCRC’s investigators was that they are deskbound, never leaving the office – now they seldom leave their own homes.

The focus for scrutiny at the moment is the CCRC’s current chair. However, it’s crucial to understand that Pitcher inherited a watchdog that had already been defanged in a way that has been overlooked by the press.  I urge Alex Chalk to read the judgment in a legal challenge to the CCRC rejection by a prisoner called Gary Warner (R (Warner) v Secretary of State for Justice [2020] EWHC 1894 (Admin)) in which the court noted the CCRC’s ‘dysfunctional’ relationship with his own department. The court was specifically talking about the tenure of Pitcher’s predecessor, Richard Foster.

Foster, previously chief executive at the Crown Prosecution Service before moving on to the CCRC, presided over a period when the Ministry of Justice foisted changes to the terms of tenure of the CCRC’s commissioners in the face of opposition from commissioners. I interviewed a number of commissioners about their unhappy experience.

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The independence of the commissioners is critical to the watchdog. That has been compromised. It takes the agreement of three of 11 commissioners to refer a case where there are concerns about the safety of a conviction back to the Court of Appeal. From the start of the CCRC in 1997 until 2012, commissioners were employed on a full-time or near full-time basis on generous salaries (£93,796 in 2013) and a pension. Almost all commissioners are now employed on minimum one-day-a-week contracts and paid on a £358 daily rate.

How do you do justice to a case like Andy Malkinson’s on a one-day a week basis? The answer is you don’t.