Trainees have been tasked with rooting out possible wrongful convictions for rape and murder in a major case review following the acquittal of Andrew Malkinson, the Guardian can reveal.
The judicial body, the Criminal Cases Review Commission (CCRC), said last month it would re-examine cases it had refused to refer to the court of appeal to check for new DNA testing options.
An internal CCRC governance document seen by the Guardian shows that the recently announced forensic trawling has so far been carried out by trainees, who have begun the process of clearing up historical cases that could be sent for further DNA testing.
It is claimed that this exercise has the potential to uncover even more wrongful convictions missed by the body. Emily Bolton, Malkinson’s lawyer at legal charity Appeal, said: “Given the seriousness of this review, it is concerning that the work to date has been carried out mainly by trainees.”
The article also suggests that there are approximately 8,000 other serious potential miscarriages of justice that are not being taken into account because the CCRC has limited the scope of the exercise to convictions for rape and murder.
The board document, marked ‘officially sensitive’ and partially redacted, was written by the director of casework operations on March 8 and sent to Malkinson’s legal team following a Freedom of Information request.
Malkinson spent 17 years in prison for a 2003 rape, with no DNA linking him to the crime. He was acquitted last year after new forensic examination of a sample of the victim’s clothing matched to male DNA in the police database.
The CCRC knew five years after Malkinson was convicted that a searchable male DNA profile had been found on the victim’s vest during forensic examination, but refused to order further DNA testing and dismissed his case in 2012. A breakthrough only came after his legal team had arranged further forensic investigations. work yourself.
The CCRC’s announcement of a series of cases came ahead of the publication of a major review of the handling of the Malkinson case. The review, led by Chris Henley KC, was presented to the CCRC earlier this year. It is expected that she will be critical of the body and recommend an exercise similar to the one announced.
The document also reveals that there are no plans to consult forensic scientists until the final stages of the exercise, after its own agents have made a decision on whether forensic work could make a difference to the case.
A DNA expert whose early research eventually led to a breakthrough in Malkinson’s case questioned why there appeared to be no plans to consult forensic scientists at an early stage.
The development raises serious concerns about the possibility of cases being missed in the first trawl. The brief states that “a small sample” was assessed by “members of the casework operations team” to develop guidance before the exercise was handed to trainees.
The CCRC said the trainees were paid members of the team who had completed the bar course before joining and typically stayed for more than a year before moving on to apprenticeship. It said it would recruit investigators for the later stages of the review process.
Prof. Christophe Champod, the forensic scientist whose pro bono work with a team at the University of Lausanne established that further DNA testing at key exhibits had the potential to exonerate Malkinson, said: “In the wake of Andy[Malkinson]In this case, I understand that it may concern people if they think that the CCRC will decide for themselves whether it is worth doing extensive forensic work or not. What really matters is the expertise that goes into assessing these cases.
“I think this is something a forensic scientist has to do, even if it’s triage. I really think you need DNA expertise, not just awareness.”
The CCRC’s trawl will look at all cases where someone was convicted of rape or murder before 2016 and had their case dismissed by the agency. The year 2016 was chosen because after that the use of more sensitive DNA-17 tests became widespread.
In the first phase, trainees will check more than 5,000 rape and murder convictions that have been refused for referral back to the appeal court, disregarding convictions they consider irrelevant. They look for cases where the identity of the attacker is in question and exclude cases where, for example, an argument about consent or self-defense was the reason for the request.
So far, the interns have narrowed 912 potentially eligible cases down to 270 and are now analyzing the rest.
The second phase will be carried out internally by researchers to identify cases where further DNA testing could be an option “based on the material available in our system”. Only these cases will move to phase three, where working with forensic scientists could result in more DNA testing.
Malkinson’s lawyer Bolton said: “To effectively root out miscarriages of justice through this exercise, the CCRC must receive input from independent forensic scientists throughout the process. It cannot be left solely to non-scientists to identify possible forensic possibilities in these cases.
“The scope of the review should also be significantly expanded. This internal document acknowledges that there are thousands of serious cases that will not be investigated, even if DNA breakthroughs are possible. That can not be true.
“The other limitation is that this review is purely aimed at identifying DNA opportunities that the CCRC may have missed in previous cases. However, we know from the case of Andrew Malkinson that the CCRC also overlooked other lines of inquiry, including failing to review police files.”
The letter acknowledges that there are thousands of serious, previously dismissed cases where the identity of the perpetrator may be an issue, but that these will not be considered for new DNA testing because the current review focuses only on cases of rape and murder.
The paper notes that expanding the scope of the investigation to include other sexual offences, violence against the person, burglary and robbery would create around 8,000 additional cases and says “concerns about the scope” of any dragnet are reasonable.
It adds: “If we are committed to detecting miscarriages of justice, we should consider a drag investigation into our closed cases. However, the scale of such an exercise is daunting.”
When asked about this, the CCRC said that “the most serious cases, involving murder and rape, are currently being investigated” but that it had not ruled out that other cases would also be assessed.
A spokesperson for the CCRC said: “Phase two is a preliminary assessment and is about identifying cases where forensic evidence could make a difference. Detailed considerations would take place in phase three and involve consultation with forensic scientists. At each stage, borderline cases will be included rather than excluded.”