EWJ FEB 59 2025 web - Flipbook - Page 8
Accountability Is Key To
Preventing Miscarriages Of Justice
By Thomas Walford and Gerald Frost
Expert Evidence Limited, Expert Evidence International Limited - http://expert-evidence.com/
No legal system is perfect. Despite the best efforts of
those involved, England and Wales have a long history of high- profile criminal cases where the convictions of innocent individuals were later recognized as
miscarriages of justice.
Accordingly, even though there was potentially
exonerating evidence, the CPS advised against further
examination.[3]
Malkinson sought to secure a CCRC referral of his
conviction on three separate occasions: 2009, 2018
and 2021. Even though there was exculpatory DNA
evidence, the first two applications were rejected.
The most recent addition to the list is the case of
Andrew Malkinson, who was wrongfully convicted of
rape in 2004 and served 17 years in prison. His case
was referred by the Criminal Cases Review Commission, or CCRC, in January this year, and on July 26,
the Court of Appeal of England and Wales quashed
the conviction. The judgment was later handed down
by the court in Malkinson v. The King on Aug. 7.[1]
On Aug. 7, the CCRC published an explanatory
statement that the "CCRC referred Mr Malkinson's
case in January 2023. He had applied to the CCRC
twice previously, but the first application was made at
a time before current DNA techniques were available
and the second concentrated on issues concerning the
identification procedure."[4]
The case follows others, including that of jailed British
subpostmasters wrongly accused of theft and fraud, as
well as that of 24 Libor traders charged in the U.K.
with conspiracy to commit fraud, with major implications for companies that assist in the prosecution of
employees, or long-term subcontractors alleged to
have broken the law.
The statement included a comment from CCRC
Chair Helen Pitcher: "In each review, we focused on
the submissions made to us. But knowing what we
know now we would have sought the undisclosed
police evidence to refer this case."
Seeking to deflect blame, the CCRC directly pointed
the finger at the GMP's undisclosed evidence in their
earlier decisions not to refer the case.
So, what does the Malkinson case and other recent
miscarriages tell us about mistakes occurring in the
justice system, and what can be done to minimize the
chances of them being repeated in the future?
The Post Office Horizon Scandal
In another prominent miscarriage of justice, the
scandal involving the Post Office and its Horizon accounting system, dating back to the late 1990s, saw
more than 700 subpostmasters being convicted of
theft, false accounting or fraud - mostly through private prosecutions by the Post Office. Despite multiple
reports that the software was causing errors, the
subpostmasters got blamed.
Malkinson's conviction, made much worse by
subsequent errors and misjudgments, illustrates
multiple systemic deficiencies.
No forensic evidence linked him to the crime, and key
aspects of his appearance did not match the victim's
description of her attacker. It took fresh forensic evidence linking another individual to the crime and detailed investigative reporting before his appeal
eventually succeeded.
In March 2019, the High Court of Justice of England
and Wales found in Bates v. Post Office Ltd. (No. 3),[5]
a group litigation, that the Post Office owed a duty of
good faith to its subpostmasters - namely, they "must
refrain from conduct which in the relevant context
would be regarded as commercially unacceptable by
reasonable and honest people."
Having initially appealed his conviction in 2006,
Malkinson applied to the CCRC for review in 2009.
Both attempts failed. Post-conviction, Greater Manchester Police, or GMP, took steps to dismiss his appeals,
even though retesting of cold case samples in 2007
revealed that another man's DNA was present in a
sample taken from the victim.
This was followed by a High Court decision in
December 2019 in Bates v. the Post Office Ltd (No. 6),
which found that extensive bugs were in the Horizon
software. [6] Justice Peter Fraser stated that the "Post
Office has gone to great lengths over the years, and
spent a great deal of time and a huge amount of
public money, in defending the performance of
Horizon."[7]
Case files released to Malkinson and reported by the
Guardian on Aug. 15 show that the Greater Manchester Police and the Crown Prosecution Service knew
that forensic testing in 2007 had found a male DNA
profile on the victim's clothing that did not match
Malkinson.[2] According to documents reported on
by the BBC on Aug. 16, the CPS was aware of this by
December 2009, but refused to reexamine the DNA
evidence unless there was an appeal.
EXPERT WITNESS JOURNAL
The CCRC only began referring Horizon-related
convictions to the Court of Appeal in March 2020.
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