Quashing of Andrew Malkinson’s rape conviction confirms failings of criminal review watchdog | Criminal Cases Review Commission

The quashing of Andrew Malkinson’s rape conviction after 17 years in jail has thrown a spotlight on to failures by the miscarriages of justice watchdog to take up his case earlier.

The Criminal Cases Review Commission (CCRC) declined to grant Malkinson a new appeal hearing in 2012 and again in 2020, although it considered different evidence than in its third review.

The result is that an organisation that was formed in response to notorious miscarriages of justice such as the Guildford Four and Birmingham Six cases now finds itself associated – for all the wrong reasons – with another. When it did finally investigate, Malkinson said it did so only after evidence was handed to it “on a platter”.

While the case represents a very public indictment of the CCRC, it reflects longstanding concerns surrounding the watchdog.

Jon Robins, criminology lecturer at University of Brighton and a freelance journalist, said: “It was down to a small legal charity, Appeal, to do the investigative heavy lifting that the CCRC should have done. The reality is that the CCRC is massively underfunded – it has been for over half its 25-year life – and massively overwhelmed. Alarmingly, there has been a 20% increase in applications over the last 12 months.”

In 2014, Richard Foster, then chair of the CCRC, told parliament’s justice committee that the watchdog had suffered “the biggest cut that has taken place anywhere in the criminal justice system”, telling members: “For every £10 that my predecessor had to spend on a case a decade ago, I have £4 today”.

A 2021 report by the Westminster Commission on Miscarriages of Justice found that funding had since increased “slightly” but was still significantly lower than in previous years, concluding that “financial constraints and an increased caseload have compromised the CCRC’s ability to carry out its role effectively in all cases”. By the end of 2022-23 the backlog of cases still under review was almost a fifth bigger than a year earlier – growing from 605 to 718.

In 2021, the current chair, Helen Pitcher, told the justice committee the CCRC needed another £1m “before we realised the magnitude of the Post Office issue” – one of the biggest miscarriages of justice in British legal history, which resulted in 736 unsafe convictions.

Appeal noted that in 2022-23, the CCRC granted new appeals in less than 2% of cases considered, which it said raised “concerns that the body is failing to identify wrongful convictions”.

While funding cuts have been severe, broader questions have been raised about how the resources it has are used. In 2018, a survey of lawyers suggested the CCRC was “not fit for purpose” with one of them describing the watchdog as “an office-bound, moribund organisation” that “doesn’t actually investigate”.

Robins expressed similar sentiments. “Its problems are cultural as well as structural,” he said. “It’s lost its campaigning zeal that it had in its early days. Its investigators are overly deskbound – although they now work remotely from home so ‘homebound’ is a more accurate way of putting it.”

There are also concerns that the test for the CCRC to refer cases to the court of appeal is unhelpful. With uncanny timing, hours after Malkinson’s conviction was quashed, the Law Commission announced a consultation on the law governing criminal appeals. Among the questions it is posing is whether the referral test, which requires a “real possibility” that the court would not uphold the conviction or sentence, should be changed.

The Westminster Commission said the test “encourages the CCRC to be too deferential to the court of appeal and to seek to second-guess what the court might decide, rather than reaching an independent judgment of whether there may have been a miscarriage of justice”.

Robins said: “If you get an increasingly conservative court of appeal, which is what we have, by definition the commission is obliged to send fewer cases back if that they don’t have the ‘real possibility’ of them being overturned.”

He also questioned the CCRC’s independence, given that Pitcher was this year also appointed chair of the Judicial Appointments Commission, which Robins said means: “We have the organisation that appoints judges run by the same person who’s then investigating wrongful convictions, which often reflect massive problems with the judiciary and the courts.”

Its independence has also been questioned by the Westminster Commission given the watchdog’s “key relationships with government and government departments” and sponsorship by the Ministry of Justice.

Pitcher said the Malkinson decision was based on new DNA evidence which “sadly only became available years after his conviction”.

A CCRC spokesperson added: “In the last three years, more than 100 people’s convictions or sentences have been overturned following CCRC referrals.

“In the last year, we completed 1,275 reviews and saw an 18.9% rise in applications for our services – demonstrating the value people with criminal convictions place on the services we can offer.

“This does have an impact on pressures on our case review staff, and it is essential that the CCRC is adequately resourced to carry out our work. We welcome our recent 15% increase in funding to help us to investigate potential miscarriages of justice.”