Despairing of the social friction fostered under Margaret Thatcher’s premiership, Andy Malkinson left the UK in 1990, shortly after the Poll Tax riots.
He travelled the world before settling in the Netherlands where he found the calm and tolerant approach of the populace more suited to his own temperament.
In 2003, during one of his occasional trips back to the UK to visit his mother, he was arrested at her home in Grimsby for attempted murder and double rape.
The events in which he became entrapped began in north-west Manchester over the night of 19-20 July 2003, the hottest night of the year in that part of the country.
After several hours’ drinking at her boyfriend’s family’s home, Andrea Prestwood [not her real name] rowed with her boyfriend and stormed out at about 2.30am. Her intention was to go back to her own home, about six miles away. Knowing how drunk she was, the boyfriend had sensibly hidden her car keys. So going home entailed a long walk. Further, when she arrived, she would not be able to get in; her house and car keys were on the same fob.
A couple of hours later, she said, she was jumped on from behind. She and her assailant tumbled down a brambly bank together. He then straddled her, she said, and grabbed her throat with both hands, so that she lost consciousness. Before doing so, however, she managed to scratch the right side of his face with her left hand. ‘I have caused a deep scratch’, she told police.
Probably about an hour later, she scrambled back up the bank and an early morning dog-walker called the police for her.
As she had lost consciousness, she could not say what had happened to her. It was the medical examiners who formed the opinion that she had been raped both vaginally and anally. A significant feature of the case was that, also, her left nipple was partially severed.
She was able to provide a description of her attacker. Amongst the characteristics she noted, she said he had a shiny, hairless chest and a local accent. She was also specific about his height: 5’8” at the most (‘two inches taller than me’).
Malkinson had flown to the UK from the Canary Islands and at first stayed in the Manchester area with a family he’d met there. After realising that they had a criminal lifestyle, he moved out and stayed for a few days with a colleague whom he’d met at the Ellesmere Centre in Bolton, where he’d taken a temporary job.
He didn’t fit the description of the attacker but that appeared of little concern to Greater Manchester Police. They took him from Grimsby to face trial in Manchester. He was convicted on majority verdicts, given a life sentence and has been in prison ever since.
I became involved in his case after his former partner wrote to me from Holland saying that she knew that Andy was not capable of anything like that.
If this had been an honest prosecution, then the case would have been founded on the forensic science evidence of which, in these circumstances, investigators could have expected a great deal. As it happened, there was none at all.
The Crown Prosecution Service attempted to fill this hole in its case by asserting that Malkinson was ‘forensically aware’. This could be ascertained, they said, by the fact that the attacker had worn a condom.
This was how the judge put it to the jury:
The evidence of the [forensic scientist] was that traces of condom lubricant were found in both the vagina and the anus. That evidence, when considered with the findings of the doctor, say the Crown, can only lead to one conclusion: that Andrea Prestwood was penetrated both vaginally and anally by an attacker wearing a condom.
At trial, the ‘forensically aware’ argument actually served a three-fold purpose for the prosecution: firstly, it enabled them to offer a viable explanation of the total lack of scientific evidence in circumstances in which any investigator (and many jurors) would have expected a great deal; secondly, it enabled them to present the placid and non-confrontational Malkinson as an experienced sexual predator (because he knew the importance of wearing a condom); and, thirdly, it deprived the defence of what would naturally have been the main plank of its case.
On 8 March 2004, less than a month after the trial finished, the forensic scientist on whose work the prosecution case depended wrote to the judicial authorities. He had some startling information:
A problem has recently emerged… As such, the previously-reported results in relation to the possible presence of condom lubricants are now regarded as unreliable.
This might have been regarded as a refreshing burst of honesty from the forensic science community. However, the apparently candid admission was actually designed to cover up what had happened. Note the wording: ‘a problem has recently emerged… the results are now regarded’.
What the judiciary were not being told was that the scientific community and the Crown Prosecution Service (CPS) knew that these tests were unreliable months before the case went to trial.
On 17 October 2003, fifteen weeks prior to the start of the trial, the Forensic Science Service (FSS) circulated an internal memo saying:
We have withdrawn use of this test from casework
We have informed all FSS staff, the CPS and other suppliers of forensic science services in the UK of the issue.
The problem was that the swabs being used in the testing contained traces of the substances that were being tested for. So the tests were completely invalid.
Even as they made the ‘forensically aware’ argument at trial, the CPS knew – or, at least, should have known – that it was untrue. If they were not being dishonest, they were being grossly negligent.
However, the ways in which the wool was pulled over the eyes of those in court does not even stop there. Look back to the scientist’s letter where he refers to ‘the possible presence of condom lubricants’.
Hold on; this wasn’t what the jury were told. The judge emphatically said, quoting the scientist’s evidence, that traces ‘were found’. There was no qualification; the evidence hadn’t been couched in terms of mere possibility. Either the judge was misleading the jury in his summing-up; or the forensic science evidence was exaggerated.
Perhaps the most remarkable aspect of the entire case was that the scientist who had misled everyone thus far and who was continuing, in his letter of 8 March, to mislead the authorities, was now tasked with conducting further tests on the exhibits.
His new tests now purported to show that there were traces of condom lubricants on the woman’s knickers. It was on the basis of this fresh evidence that Malkinson’s appeal was dismissed.
However, these new tests were themselves redundant. The original tests had included tests on the knickers. That being the case, the fact that different swabs were now being used was irrelevant. The exhibits were already contaminated and that was that.
But the appeal court judges were not told about that. Nor were they told about an additional matter of considerable significance. The knickers were ripped apart down one side. The scientists who examined them described them as ‘unwearable’. The complainant told police that, when she came to, ‘my knickers were pulled right down and were attached to my right ankle’. The police officer who took them from her recorded in her notebook: ‘[Prestwood] handed me a pair of briefs which she produced from the right pocket of her fleece’.
Because the facts were withheld from them, the judges would have assumed that after the assault Prestwood, attempting to compose herself, replaced all her clothing; and that was how the supposed condom lubricants from the attack came to be transferred to the knickers. But that is not what had happened.
There are two further respects in which the ‘forensic awareness’ argument does not hold water. Firstly, the woman said that the attacker removed his shirt during the assault. It was an unusually hot night (and one witness, whom we will come to, referred to the man as ‘sweating profusely’), so a ‘forensically aware’ assailant would not have done that, lest he leave traces of himself on his victim.
Secondly, there was the partial severing of the left nipple. This was used at trial to ramp up the seriousness of the attack; it was suggested that the attacker could have bitten the woman. Again, the jury was being seriously misled because that is precisely what a ‘forensically aware’ attacker would have avoided; such an action could well have left incriminating forensic evidence in the form of either teeth-marks or, far worse, saliva deposits from which a DNA profile could be obtained.
None of this should obscure the fact that other evidence that might have been anticipated was conspicuous by its absence. The woman had ‘superficial scrapes of the skin [which] resembled scratches from vegetation’, as well as bloodstained hands, which could be accounted for by having tumbled down a brambly bank. There were no marks of this kind on Malkinson’s body. (True, he was only arrested some weeks later, but no evidence is no evidence.) Further, she’d suffered cuts and bleeding as a result of the tumble; so one would have thought it possible that the attacker would also have suffered bleeding, and as a result that some of his blood would be left on her. Again, there was nothing.
There was also identification evidence. The man stalking Prestwood at 4.30 in the morning, if there was such a man, was also seen, apparently, by a couple driving around. The driver’s former partner had been causing a commotion outside their house and they were looking for her.
So, two weeks later, Greater Manchester Police conducted a video identification parade at 1.00am on a Sunday morning. The woman from the car (who said that the man she saw was ‘sweating profusely’) and Prestwood were picked up and taken to the police station together in the same police vehicle. (The driver could not attend because he’d had too much to drink.)
The outcome of the video identification was that Prestwood identified Malkinson; the other woman identified someone else.
The duty solicitor from Burton Copeland, who were representing Malkinson at this time, wrote a memo expressing his concerns about the propriety of the procedure – was it normal to hold a video parade at that time of the morning? – and the identification that resulted from it.
Superficially, the fact that the complainant positively identified Malkinson may have appeared compelling evidence. However, her evidence was vitiated, if not undermined altogether, by the fact that in six key respects, Malkinson did not fit the description she’d already given of her attacker.
First of all, there was the height. Prestwood was specific about this (‘5’8” at the most – two inches taller than me’); but Malkinson was significantly taller, 5’11”. Secondly, the attacker removed his shirt and the witnesses said that his torso was hairless; but Malkinson was well-blessed with chest hair. Thirdly, she said the attacker had an accent that was ‘local to Bolton’. Later on, prosecution witnesses tried to modify this, but the stark fact was that she’d mentioned a local accent; and Malkinson did not have one. He had never even been to the area before, let alone been brought up there.
Fourthly, the attacker removed his shirt. Malkinson had very prominent tattoos (acquired on his overseas travels) running down each forearm, but Prestwood saw no tattoos on her attacker.
Fifthly, she was adamant that she caused ‘a deep scratch’ to the man’s face. Malkinson was seen at work immediately after this incident – by police officers among others – and his face was not scratched.
Sixthly, there was the clothing. The witnesses were agreed that the man was wearing ‘smart’ black trousers, ‘smart’ black shoes and a ‘very smart’ shirt. Malkinson did not possess, and had never possessed, clothing of that kind.
In fact, the prosecution could offer no hint of an explanation as to how the impecunious Malkinson (he’d had all his money stolen in the Canaries) might have acquired smart clothing. It was a significant evidential point that the CPS should not have been allowed simply to gloss over.
In January 2004, with the trial looming, the man in the car was very belatedly asked to attend a video identification parade and, surprise, surprise, he then identified Malkinson.
At that point he was purporting to identify someone whom he had glimpsed, he said, ‘for about five seconds’ over five months earlier while he was driving a car at half-past-four in the morning. (Try driving a car and, for about five seconds, looking not straight ahead but at someone on the other side of the road. No, on second thoughts, don’t try it.)
Then, with the trial about to start, another “identification” emerged. There was the woman in the car, who had picked out a parade stooge. Now, it seems, her evidence had changed. She hadn’t picked out a parade stooge; she’d picked out Malkinson!
When had this change in her evidence occurred? The woman said she changed her evidence when she returned to the witness room (which is where Prestwood was). However, the officer accompanying her had a different story. He said that she’d changed her evidence in the corridor ‘more or less immediately’ after leaving the video suite.
The jurors were commendably alert to the puzzling aspects of this evidence and as a result asked to see this woman’s statement.
Of course, they wouldn’t have been allowed to see it, but this wasn’t the point. The point was that, because of the jurors’ request, the prosecution had to admit that no such statement existed. The woman hadn’t made a statement about this change in her evidence.
Nor was it mentioned in the officer’s notebook. Strangely, there was no reference to it there either!
One can study the other background documentation. The police themselves adumbrated their case for the magistrates. Their four-page report mentions just the one identification; had there been two, it would have strengthened their case and so they would have been bound to mention it. Conversely, there is that memo drawn up immediately after the video parade by the duty solicitor in which he expresses concern about what took place. That refers to only one identification; had there been two, again it would have hugely reinforced his point, so he would have been bound to mention it.
The brief to counsel, completed months later, also refers to just one identification.
In fact, there is just one document that mentions this second identification and that is a skimpily filled-in form that appears as page 45 in the prosecution bundle. But – what’s this? – there is already a page 45 in the prosecution bundle.
So, it appears possible that that single document was put together later, backdated, and then inserted into the prosecution bundle.
Let us make a reasoned guess about what occurred during this police investigation. The incident was reported, the woman was interviewed and a statement taken from her. The investigating officers would have had next to no concern about the video identification because once all the forensic science evidence came flooding in, they’d have everything they needed to secure a conviction.
Months later, with the trial fast approaching, they would have been alerted to the fact that, actually, there was no forensic science evidence at all. The only evidence they did have – the complainant’s identification – could be trashed in court by any competent defence barrister. Alarm bells would have rung. The other two identifications then, well, happened.
Greater Manchester Police made a three-part documentary series with the BBC, Eyewitness, in which they highlighted the dangers of identification evidence and explained that they had refined their techniques for interviewing witnesses about identifications. ‘Greater Manchester Police are among the most modern practitioners of interviewing techniques anywhere in the world’, an officer claimed. ’It’s something we can be rightly proud of.’
So it was hugely hypocritical of Greater Manchester Police to have tendered this identification evidence at trial because none of it met what they claimed were their own standards.
The defence case was straightforward. That evening, Malkinson had a good night’s sleep and turned up for work at 8.00 the next morning, well-rested and with his face unscratched.
I recall a mini-scandal when I was at school. Who, the staff angrily demanded to know, was responsible for this?
One bright spark in the class stuck up his hand and volunteered a name: ‘it was Hawkins, sir’.
Hawkins had left school the previous Friday, as his family were emigrating to Australia.
Everyone else then took up the name, and enjoyed the rare impotence of the school staff.
Something like that could have happened in this instance. The police made inquiries with the family with whom Malkinson had briefly stayed (who may well have been police informers) and so they vouchsafed the name of someone who’d lately left not just the area but, they probably thought, the UK.
Ironically, if Malkinson had been a rapist, that’s exactly what he may well have done. But he wasn’t, so he simply went to his mother’s, where the police could easily trace him.
At trial, the judge’s performance was simply inadequate. With reference to the supposed scratch on the attacker’s face, he said this in his summing-up:
She believed, undoubtedly, believed, that she scratched his face… Did she succeed in scratching his face in the way she clearly believed she did? [italics added]
The complainant never said that she believed she’d scratched his face. She was adamant; she had scratched his face. ‘I have caused a deep scratch’, she said at one point.
So the judge here was subtly reshaping her testimony so that it made the prosecution case more credible. One barrister to whom I showed the papers commented that at this point the judge was giving evidence himself.
Similarly, the judge told the jury that the woman in the car changed her evidence at the video identification parade. Again, this was a subtle but significant change. If she’d changed her evidence at the parade, that would have made the evidence more plausible from the prosecution point of view. But neither she, nor the officer accompanying her, had said that.
The jurors asked him whether they needed to be ‘absolutely sure’ of their verdicts. No, the judge responded, that was not the test. So perhaps the ten jurors who convicted Malkinson were merely slightly sure of his guilt.
Just the two remaining jurors reached the correct verdict.
It is certainly pertinent to ask why, if the case against Malkinson was this threadbare, did his defence team not make hay at trial?
It was a question to which Malkinson himself could not fathom the answer. So, afterwards, he did some research. He then discovered that his solicitor had been imprisoned for fraud and struck off.
In his desperation to be re-admitted, the solicitor appears to have ingratiated himself with the local police – with whom, he said, he ‘worked closely’ – and indeed his application for re-admission was supported by the Chief Constable of Greater Manchester. Even so, the application was rejected. He remained struck off. Nevertheless, he went on to act for Malkinson and, of course, conveyed nothing of this to him.
If I had been the defence barrister cross-examining the complainant, I would have begun by asking a vitally important question: can you tell us what happened to your handbag?
Prestwood specifically stated two things about her handbag. She carried it over her right shoulder; and it was so full she couldn’t close it. Accordingly, when the attack happened, one would have expected its contents to be strewn over the bank.
Moreover, straight after the supposed attack, she reported the handbag as missing both to the medical examiner and also the police, who painstakingly itemised all its contents.
But the handbag was not lost or stolen, and nor were its contents strewn down the bank. Apart from her mobile phone, she didn’t lose anything. The handbag simply disappears from the case. My impression (from reading between the lines of one statement) is that it was found, with contents intact, at the top of the bank.
Bearing this in mind, this is what may have happened. At this point on her long walk, she stopped to relieve herself and put her handbag down. In her inebriated state (she was still smelling of alcohol by the following lunchtime), she tumbled down the bank and lost consciousness.
Coming to, she partly-imagined, partly-concocted the scenario that she subsequently conveyed to police officers.
She would have realised that she wouldn’t be welcome back at her boyfriend’s family home, as she’d kept them all awake half the night by ringing the landline. For that reason, and also to cover her embarrassment, she had to come up with a sympathetic story. All she’d have needed to do was to discard her mobile phone and tear her own knickers. (According to her account, the knickers must have been torn after she lost consciousness; but this doesn’t make sense – the attacker would have had no need to rip them and could just have pulled them down.)
Apart from her own story, there is no evidence whatever of an attack. There is no scientific evidence on her of an attacker, and nor is there evidence of any sexual assault upon her. What the judge termed the ‘findings of the doctor’ could have been otherwise explained: she had recently had consensual intercourse with her partner; and a small tear at her anus could have been the result of her tumble down the bank. As she admitted, ‘I slid down on my bum’.
Malkinson has been in prison for more than thirteen years for a crime that he certainly did not commit and a crime that, in all probability, never happened.
During this time, nothing has happened. The CCRC examined the case and was able to find nothing that raised doubts about the safety of the conviction.
Now, of course, Malkinson remains in prison because the National Offender Management Service (NOMS) say he has not confessed or come to terms with his offence. And so the incompetence, negligence and dishonesty that has been manifest at every stage of this criminal justice process is compounded by the professional crassness of NOMS.
Of course he hasn’t admitted guilt for a crime he didn’t commit. Unlike almost all others in this saga, he is someone of fierce moral integrity.
(The Andy Malkinson case is one of ten examined in The Nicholas Cases, published this month by Bojangles Books, £20; ebook £4.87