Andrew was sentenced to life imprisonment for rape in 2004. After 17 years he was released on licence. He could have walked free after just six-and-a-half years had he admitted the offence – Manchester Evening News, Jan 24 2023
Abridged from The Independent newspaper, yesterday:
A suspect has been arrested on suspicion of rape – a crime for which another man claims he spent 17 years wrongfully imprisoned …
Andrew Malkinson was jailed for life in 2004 and twice refused an appeal. But since his release on licence in 2020, scientific advancements allowed his legal team to provide evidence which cast doubt on his conviction. Unknown male DNA from the victim and her clothing pointed to an alternative match on the National DNA Database.
“I am innocent,” said Malkinson. “Finally, I have the chance to prove it …
Mark those words. I can prove my innocence …
… I only have one life and 20 years of it has been stolen from me. Yesterday I turned 57. How much longer will it take?”
He was convicted of strangling and raping a Salford woman in July 2003, by a jury verdict of 10-2. This despite no forensic evidence, and discrepancies in eyewitness descriptions. He says his is a case of mistaken identity …
Since early childhood, injustice has offended me. At fourteen, when my pals were reading James Bond capers or, given their druthers, nothing at all, I was fastening on every last paragraph and punctuation mark of Ludovic Kennedy’s Ten Rillington Place. And here’s the thing. Horrifying as Christie’s serial murders of women were, still more horrifying to me was that his perjury to save his own neck sent an innocent Timothy Evans to the gallows.
(From the vantage point of Christie’s subsequent conviction, Kennedy argued that to maintain Evans’s guilt – as the state would for years – required one to believe that two serial killers had operated at the same time and in the same house, unbeknown to one another. While the trio of judges who heard Evans’s appeal did not have Kennedy’s luxury of hindsight, one was the father of the prosecuting QC. The glaring conflict of interest did not trouble the Crown. After refusing to hear significant evidence not presented to the trial jurors – including statements by workmen that destroyed a timeline crucial to the prosecution case – the appeal judges upheld the verdict and Evans was hanged seventeen days later.)
Even now, when not calling out greater ruling class devilry in Ukraine and South China Sea, my idea of relaxation is to binge on Netflix documentaries on miscarriages of justice by the state.
Andrew Malkinson’s rape conviction rested on eyewitness testimony. As it happens, in a post last July, Dress code for an execution, I told of a young reporter’s indignation at being found inappropriately dressed for a lethal injection in Alabama. Though there was little doubt of the condemned man’s guilt – “no doubt” being an epistemological impossibility which, alongside irreversibility, forms my primary objection to the death penalty – I wrote in a footnote that:
Four years ago I found myself drinking cocktails in a New Orleans bar with a lawyer specialising in pro bono death row cases. (Mostly his aim is to avert the needle via mitigating circumstances not aired in the sentencing phase but at times he goes after the verdict itself.) Among many chilling stories told, cogent points made and examples given of the staggering indolence of court appointed lawyers was the case where, having accessed documentation from the original trial, my man learned that the bored Louisiana State appointed lawyer had whiled away his time in the courthouse, where his client was on trial for his life, by jotting down the baseball scores he didn’t subsequently trouble to remove from the case notes he sent my bar buddy.
One of those “cogent points” concerned eyewitness reliability. “Look at my face”, my cocktail companion had demanded in his Louisiana drawl:
Maybe tomorrow/next week/next year, you’ll recall it accurately. Maybe. But what if I’m holding a gun to your head. How much attention will you be paying to how I look?
His wider point was that the things juries love – eyewitness accounts, confessions and DNA – all raise red flags for experts but not for your average juror.
Here though I’m concerned not with averting miscarriages. Rather, with how they are redressed after they come to light. Yesterday’s news got me asking how their victims are compensated in the UK. I’ve idly pondered that before, but now felt moved to find out. Here’s what I gleaned:
- A maximum of £1 million (less than half the average cost of a terraced house in Camden) can be paid where an innocent has served more than ten years.
- A maximum of £500,000 can be paid in all other cases.
- In any case savings on accommodation and food are – I kid you not! – to be deducted.
But those maximum sums are rarely if ever paid. From a March 2021 article on the Justice Gap website, I learned that:
Not a penny has been paid out in the last 12 months in compensation for the wrongly convicted under a scheme of ‘compounding the trauma’ of victims of miscarriages of justice. In response to a freedom of information request by the Justice Gap, the Ministry of Justice has revealed that no compensation had been awarded. This is the third year since the Coalition government restricted payouts with the introduction of its Anti-Social Behaviour, Crime and Policing Act 2014 that no money has been paid out under what is known as the section 133.
My subsequent enquiries took me to a fascinating piece on the University of Kent website:
The UK Supreme Court has ruled by a majority of five to two that the current scheme to compensate wrongfully convicted persons is compatible with the presumption of innocence, even though it precludes many such persons from compensation.
The Supreme Court had Heard the joined cases of Hallam v Secretary of State for Justice, and Nealon v Secretary of State for Justice. Hallam had had his conviction quashed after serving eight years for murder, Nealon after seventeen for rape. Both had been denied compensation. Since the judges in the majority included Baroness Hale, whose piercing of circular reasoning in applying employment law had helped my case against Sheffield Hallam University, I read on.
Two factors informed those 2019 deliberations. One was Section 133 of the Criminal Justice Act 1988, which states that:
…when a person has been convicted of a criminal offence and when, subsequently, his conviction has been reversed or he has been pardoned on the ground that a new, or newly discovered, fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction…, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
The other was the 2011 case of one Andrew Adams. The piece comments:
As originally enacted, the 1988 Act did not define a miscarriage of justice. In Adams (2011), the Supreme Court identified four possible categories of progressively wider scope: 1. the new fact shows clearly that the defendant is innocent of the crime of which he was convicted; 2. the new fact so undermines the evidence against the defendant that no conviction could possibly be based upon it; 3. the new fact renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant; and 4. something had gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.
By a five to four majority, the Court in Adams confined a miscarriage of justice for the purposes of the compensation scheme to categories 1 and 2. It seems that the minority would have been more stringent and confined it to category 1. Even on the majority approach, many persons who had served long prison sentences for offences, of which they were not guilty in the eyes of the criminal law, would not be considered to have suffered a miscarriage of justice to qualify for compensation within the scope of the scheme.
Despite the arguably high bar for compensation set by the majority in Adams, Parliament raised it even higher by an amendment effected by the Anti-Social Behaviour, Crime and Policing Act 2014. This confines a miscarriage of justice to situations where the new fact shows beyond a reasonable doubt that the applicant did not commit the offence (effectively category 1 situations). That, of course, looks very like a requirement on the acquitted applicant to prove his innocence beyond a reasonable doubt …
It does indeed, though the article teases out various intricacies, bifurcations and discordances in their reasoning – not least on whether the ECHR, a touchstone in Adams 2011, still applies after Brexit. But why all this hair-splitting, this micro-scrutiny of four distinct categories?
Here’s my test:
If a conviction is deemed so unsafe as to be quashed, and a jailed person released, then that person should be financially compensated in line with criteria for calculating redress in other arenas of civil law minus, where applicable, a percentage commensurate with the extent to which that person’s actions (or lack of) is found to have contributed to the unsafe conviction.
(True, my caveat leaves room for wrangles over whether, for instance, a false confession had been freely and mischievously made or induced by the police. But aren’t such contingencies why we have lawyers in the first place?)
Mr Malkinson, out on licence these past two years, has not had his conviction quashed. In the meantime, the Independent piece I began with tells us that:
… in a further development, Greater Manchester Police revealed on [January 24] that a 48-year-old man from Essex had been arrested last month on suspicion of the rape. That suspect has since been released under investigation …
Whatever the outcome for Andrew Malkinson, the parsimony stinks. Having wrongfully taken a person’s liberty for years and even decades – where “wrongfully” equals falling short, at the time or in light of subsequent findings, of establishing guilt beyond reasonable doubt – is it so exorbitant a demand that the state err on the side of generosity? How many such cases are there? Can they not all be handsomely compensated from the proceeds of real pay cuts across Britain’s public sector? Still leaving a bob or two in the kitty to further fuel WW3 in Ukraine?
Only kidding. My real point is that while the judicial arm of the state – as represented by Hale et al – may wrestle on occasion with such niceties of reason and law, the executive and legislative branches apply a cruder metric:
How many votes will be gained or lost on a matter affecting so tiny a minority?
Though that test too is set aside on matters vital to power. Hence the billions poured into arms for a corrupt Kiev, even as the said executive has it that “we can’t afford” minimal care for our most vulnerable. Bah!
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