Andrew Malkinson v R

Fresh scientific evidence may render convictions based on identification unsafe where it both materially weakens the identification case and implicates another person as the sole possible offender. The court may determine additional grounds after allowing an appeal on one ground where the interests of justice require it.

Material non-disclosure can independently make a conviction unsafe if it prevented the defence from presenting its case properly and wrongly strengthened the prosecution case. The effect of withheld material must be assessed in the context of the whole identification evidence.

Andrew Malkinson v R concerned convictions in 2004 for attempted choking with intent to rape and two rapes. The prosecution case depended wholly on identification evidence from the complainant and two other witnesses. An earlier appeal was dismissed: [2006] EWCA Crim 1891.

Following a reference by the Criminal Cases Review Commission, the appellant relied principally on new Y-STR DNA evidence. It did not support his involvement and linked samples from crime-specific areas to another man. He also alleged non-disclosure of photographs of the complainant’s hands and of the criminal records of the two supporting identifying witnesses. The court had to decide whether the convictions were unsafe and whether the further grounds should be determined after the first ground succeeded.

1. The appeal was allowed and the convictions were quashed. The court admitted the fresh scientific evidence under section 23 of the Criminal Appeal Act 1968. It was credible, admissible at trial, capable of supporting the appeal, and there was a reasonable explanation for its absence at trial: the relevant DNA techniques were unavailable in 2004.

2. The new evidence seriously undermined the identification case and directly implicated another man. There was no evidence that more than one man committed the offences. Accordingly, regardless of any future prosecution of that man, the evidence gravely weakened the case against the appellant and made the verdicts unsafe.

3. Applying Hamilton and others v Post Office Limited [2021] EWCA Crim 21, the court held that it retained a discretion to determine the remaining grounds after allowing the appeal on the first ground. The interests of justice favoured doing so because of the appellant’s lengthy imprisonment, his article 6 rights, the importance of the case, public confidence, and the absence of undue delay.

4. The undisclosed photographs were highly material. They strongly showed that the complainant had not damaged a fingernail on her right hand, so that the medical note suggesting otherwise was mistaken. The non-disclosure prevented the defence from presenting the scratching evidence in its best light and wrongly strengthened the prosecution case. Ground 2 also rendered the convictions unsafe.

5. The undisclosed criminal records of the two witnesses who supported the complainant’s identification should have been disclosed and admitted as fresh evidence. Although Ground 3 alone would not have made the convictions unsafe, it deprived the defence of a meaningful opportunity to challenge their honesty and credibility. Combined with Ground 2, it did so.

6. The proposed evidence for Grounds 4 and 5 was either speculative or incapable of assisting a jury. The court refused leave on those grounds and declined to admit the proposed fresh evidence.

• Court of Appeal (Criminal Division): In Andrew Malkinson v R, [2023] EWCA Crim 954, the court allowed the appeal after a Criminal Cases Review Commission reference and quashed the convictions.
• Court of Appeal (Criminal Division): An earlier appeal against conviction was dismissed in 2006: [2006] EWCA Crim 1891.
• Crown Court at Manchester, Crown Square: In 2004, the appellant was convicted of attempted choking with intent to rape and two offences of rape, and was later sentenced to life imprisonment.