R v Parrie Jacob
[2023] EWCA Crim 445
Andrew Malkinson v R
7 August 2023
[2023] EWCA Crim 954
Court of Appeal
A man was wrongly convicted of rape 20 years ago. New DNA evidence proves he's innocent, and the court also found that the police didn't give his lawyers important evidence in the first trial. So, the court let him go free.
Key Facts
- •Andrew Malkinson was convicted in 2004 of attempted choking, suffocating, or strangling, and two counts of rape of a woman, 'C'.
- •He maintained his innocence and appealed his conviction.
- •New DNA evidence, unavailable at the time of the trial, implicated another man, 'Mr B', in the crimes.
- •The new DNA analysis showed no link between Malkinson and the crime scene evidence.
- •Additional evidence suggests material non-disclosure of photographs of C's hands and criminal records of witnesses Beverley Craig and Michael Seward.
- •The prosecution conceded that the new DNA evidence rendered the convictions unsafe.
Legal Principles
Fresh evidence is admissible if it meets specific criteria under section 23 of the Criminal Appeal Act 1968.
Criminal Appeal Act 1968, section 23
An appeal may be allowed on grounds not referred to by the Criminal Cases Review Commission (CCRC) if the Court of Appeal gives leave (sections 14(4A) and 14(4B) of the 1995 Act).
Criminal Appeal Act 1995, sections 14(4A) and 14(4B)
In cases where an appeal succeeds on one ground, the court has discretion to consider other grounds in the interests of justice (Hamilton and others v Post Office Limited [2021] EWCA Crim 21).
Hamilton and others v Post Office Limited [2021] EWCA Crim 21
The court must consider the safety of the convictions in light of all available evidence and submissions.
Implicit in the judgment
Article 6 of the European Convention on Human Rights guarantees the right to a fair trial.
European Convention on Human Rights, Article 6
Outcomes
Appeal allowed on Ground 1 (new DNA evidence).
The new DNA evidence implicated another man and provided no support for Malkinson's guilt. The prosecution conceded this point.
Appeal allowed on Ground 2 (non-disclosure of photographs of C's hands).
Non-disclosure of the photographs prevented Malkinson from presenting his case effectively and strengthened a mistaken aspect of the prosecution case.
Appeal allowed on Ground 3 (non-disclosure of witness criminal records).
Non-disclosure of witness criminal records prevented effective cross-examination and undermined the jury's assessment of witness credibility, particularly when considered alongside the non-disclosure of the photographs.
Leave to appeal refused on Grounds 4 and 5 (non-disclosure of witness's motoring offences and drug use).
Insufficient evidence to show material non-disclosure in Ground 4, and expert evidence in Ground 5 was deemed inadmissible and unhelpful.
Convictions quashed.
The appeal succeeded on Grounds 1, 2, and 3, rendering the convictions unsafe.