An announcement of an inquiry into Andrew Malkinson’s wrongful conviction has been delayed as ministers debate his request for powers to compel witnesses to appear.
The 57-year-old spent 17 years in prison for a rape he did not commit. The guard’s conviction was overturned by the Court of Appeal last month.
He has called for a statutory public inquiry into the role played by the Greater Manchester Police (GMP), the Crown Prosecution Service (CPS) and the Criminal Cases Review Commission (CCRC) in his miscarriage of justice.
“This investigation needs the power to compel disclosure so that I can finally understand what went so wrong,” he said.
However, ministers are reluctant to agree to this because of the length of time the procedural process and gathering of evidence can take.
They argue that a non-legal route could provide Mr Malkinson with faster answers – but that no legal action can be taken against witnesses who refuse to cooperate and try to cover up shortcomings.
The ministers aim to solve the problem within the next 24 hours. One source said it was important to “get it right” rather than rush into an announcement.
Appeal rejected
Mr Malkinson – who has always maintained his innocence – was convicted on the basis of witness testimony, with the prosecution arguing that he had left no DNA because he was ‘forensically aware’.
But even though in 2007 the DNA of another man, who was not that of the victim’s then-boyfriend, was discovered on a “crime-specific” part of her clothing, the CCRC has twice denied his appeal.
In 2009, the CPS’s head of complex cases admitted that the new evidence was “surprising.”
However, he said there was no need to work further on the file unless the case went to appeal, with his focus being on “strengthening” the case against Mr Malkinson.
The CPS, under its own direction, is required to “write to the CCRC as soon as possible on any case where the safety of the conviction is in doubt.”
However, there is no record of her passing the new evidence to the CCRC. Instead, it appears it only informed Mr Malkinson’s legal team at the time.
Sir Keir Starmer, who was head of the CPS from 2008, is under pressure from Tory MPs to say he would be prepared to appear at any inquiry after telling Sky News in April that he was “taking full responsibility for every decision of the CPS” when he was in charge. His office said nothing about the case had appeared on his desk at the CPS.
Emily Bolton, head of his current legal team at the Appeal charity, said it was not known whether the CPS had contacted the CCRC in 2007-2008.
However, she added: “It is clear that a communication like this from the CPS would have carried more weight with the CCRC than an application from Andy and his previous legal representatives.”
‘They all bear responsibility’
Lord Garnier, a former Solicitor General, said it was crucial to establish who knew what and when, who they told and “why they didn’t take this further”.
“There is not one of these organizations – the GMP, CPS and CCRC – that can hide from this. They are all responsible for this,” he said.
He believes answers are needed quickly, within six months, with a government-backed non-statutory inquiry requiring “full disclosure of all relevant papers”.
If not, officials from the three agencies could “expect public condemnation and the end of any further public career,” he said.
A Justice Department spokesman said: “The Lord Chancellor has made it clear that he is determined to bring to light the lessons learned in the Andrew Malkinson case. He is carefully considering how best to get the answers Mr. Malkinson deserves.”
The CPS has been contacted for comment.
The debate comes as families of Lucy Letby’s victims are calling for a legal public inquiry into the murder of the neonatal nurse at Countess of Chester Hospital between 2015 and 2016.
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