This week the Criminal Cases Review Commission (CCRC) announced it will re-examine almost 5,500 previously rejected cases to see if DNA breakthroughs can be made. This represents a significant step forward for those of us who know that the statutory miscarriage of justice review body has denied justice to scores of wrongly convicted individuals, of which Andrew Malkinson is only one.
If carried out thoroughly and transparently, with input from independent forensic scientists, CCRC applicants and their legal representatives, the potential implications of this exercise are enormous. New DNA testing may exonerate dozens of individuals who had their cases previously turned down by the CCRC. However, there are good reasons to be sceptical that this review will deliver on its promise.
First, its scope is too narrow. The CCRC’s mishandling of Mr Malkinson’s case was not limited to its failure to utilise DNA-17 profiling in 2014, when the technique was introduced. The body also erroneously dismissed the significance of existing DNA evidence supporting Mr Malkinson’s innocence, and it failed to uncover serious disclosure failings. Yet these types of problems with the way the CCRC investigates and decides cases will not be addressed by this review.
Furthermore, the review will focus exclusively on murder and rape cases. This means potential DNA breakthroughs will not be searched for in other serious potential miscarriage of justice cases, including those involving attempted murder and sexual assault. Moreover, the review will seemingly only focus on the utilisation of DNA-17 profiling. Yet there are other DNA technologies which have advanced over the years and could help identify the true perpetrators of crimes, most notably Y-STR analysis.
Second, the CCRC has an unimpressive track record when it comes to undertaking these sorts of reviews. Following public outcry over the case of Liam Allan, who narrowly avoided wrongful conviction when a failure to disclose evidence came to light at the eleventh hour, the CCRC announced in 2018 it would be re-examining 306 previously rejected rape cases to see if disclosure issues had been missed. It sounded like an impressive exercise, until it became clear the CCRC would only be looking at the police files in a fraction of these cases. In the end, the CCRC was ‘pleased to report that no major concerns’ had been uncovered – a finding which raises eyebrows given the widely recognised prevalence of disclosure failures in criminal trials.
Similarly, in 2021 it emerged the CCRC would be re-examining a number of domestic homicide cases in the wake of coercive control victim Sally Challen’s successful appeal. However, not a single referral appears to have resulted from this.
Third, there is little reason to have confidence in the integrity of this review so long as systemic problems at the CCRC go unaddressed. As APPEAL has argued in submissions to the Law Commission, legislative change is needed to tackle the CCRC’s dearth of transparency and accountability, as well as its all-too frequent failure to pursue reasonable lines of enquiry.
Fresh leadership is a must if the CCRC is to restore public confidence that it can reliably root out miscarriages of justice. It is simply not tenable for the CCRC to carry on being led by a part-time Chair who has no background in tackling wrongful convictions and juggles several other jobs. This is even more so given that one of Helen Pitcher’s other roles is chairing the Judicial Appointments Committee, which represents a clear conflict of interest and risks placing the CCRC’s impartiality in jeopardy, particularly when the body inevitably falls to consider a case where the conduct of a judge appointed by Ms Pitcher is called into question.
Still, the sheer scale of the review announced by the CCRC represents an important concession that the body may have let down many other miscarriage of justice victims. It has been extracted through sustained campaigning by Mr Malkinson and others. The challenge now is to keep the pressure up. This includes persuading Justice Secretary Alex Chalk – who has said one of his priorities is ensuring ‘the innocent walk free’ – to order a much needed overhaul of the CCRC.
