Interns in a major case review sparked by the exoneration of Andrew Malkinson have been tasked with weeding out possible wrongful convictions for rape and murder, the Guardian has revealed.
The justice body’s miscarriage The Criminal Cases Review Commission (CCRC) last month said it would re-examine cases where it had refused to refer to the appeals court to check for new DNA testing opportunities.
An internal CCRC board document seen by the Guardian shows that the newly announced forensic trolling exercise has so far been carried out by interns who have begun the process of reducing historical cases that can be sent for further DNA testing.
The app is said to have the potential to uncover other wrongful convictions overlooked 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 so far has been mostly done by trainees.”
The article also suggests that nearly 8,000 other potentially serious miscarriages of justice were ignored because the CCRC limited the scope of its application to rape and murder convictions.
The partially redacted board document, marked “officially sensitive”, was written by the director of social work 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, and no DNA was found linking him to that crime. He was exonerated last year after new forensic testing of a sample of the victim’s clothing linked to male DNA in the police database.
The CCRC knew five years after Malkinson was convicted that a forensic examination had found a searchable male DNA profile on the top of the victim’s vest, but refused to order further DNA testing and dismissed his case in 2012. This breakthrough came only after the legal team conducted further forensic editing. they work themselves.
The CCRC’s case sweep announcement comes ahead of the publication of its comprehensive review of the Malkinson case. The review, led by Chris Henley KC, was handed over to the CCRC earlier this year. It is expected to criticize the body and suggest an exercise similar to the one described.
The document also reveals that there were no plans to consult forensic scientists until the final stage of implementation, after their caseworkers had decided whether forensic work would make a difference in the case.
A DNA expert whose initial investigations ultimately led to a breakthrough in the Malkinson case has questioned why there appeared to be no plan to consult forensic scientists in the early stages.
This development raises serious concerns about the possibility of cases being missed during the initial trawl. The summary notes that a “small sample” was reviewed by “case study operations team members” to develop guidance before the app was given to trainees.
The CCRC said its interns are salaried members of the team who complete the Bar course before joining and usually move on to student classes after staying for more than a year. He said he would hire investigators for later stages of the review process.
Prof Christophe Champod, a forensic scientist volunteering with a team at the University of Lausanne, found that further DNA testing of key exhibits had the potential to exonerate Malkinson: “After Andy,[Malkinson]In this case, I can see how it might concern people to think that the CCRC will decide for itself whether it is worth doing extensive forensic work. What really matters is the expertise offered in examining these cases.
“I think this is something that a forensic scientist should do, even if it’s triage. I really think you need not just awareness, but DNA expertise.”
The CCRC’s troll 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 the more sensitive DNA-17 test became widespread.
In the first phase, interns review more than 5,000 dismissed rape and murder convictions to be sent back to the appeals court, leaving out those they deem irrelevant. They look for cases where the identity of the attacker is in doubt and exclude cases where arguments about consent or self-defense are grounds for application, for example.
So far, interns have narrowed down 912 potentially eligible cases to 270 and are now analyzing the rest.
The second phase will be conducted in-house by investigators to identify cases where further DNA testing may be an option “based on the material available in our system.” Only these cases will advance to phase three, where work with forensic scientists may result in further DNA testing.
Malkinson’s barrister Bolton said: “For this work to effectively eliminate miscarriages of justice, the CCRC needs to hear from independent forensic scientists throughout the process. Identifying potential forensic opportunities in these cases cannot be left solely to non-scientists.
“The scope of the investigation also needs to be significantly expanded. This internal document acknowledges that there are thousands of serious cases that would not be investigated even if DNA discoveries were possible. This cannot be true.
“The other limitation is that this review focused solely on identifying DNA opportunities that the CCRC may have missed in previous cases. However, we know from Andrew Malkinson’s case that the CCRC also overlooked other lines of inquiry, including by not reviewing police files.”
The summary acknowledges that thousands of serious cases in which the identity of the offender might be an issue have previously been rejected, but these will not be considered for new DNA testing as the current review focuses only on rape and murder cases.
The report notes that expanding the scope of the review to include other sexual offences, violence against the person, burglary and theft would add around 8,000 more cases, and notes that “concerns about the scope” of any trolling are reasonable.
He adds: “If we are determined to find miscarriages of justice, we should consider combing through our closed cases. But the scale of such an exercise is daunting.”
When asked about this, the CCRC said that “the most serious of the cases involving murder and rape are currently being examined” but that it did not rule out considering other cases.
A spokesperson for the CCRC said: “The second stage is a preliminary assessment and is concerned with identifying cases where forensic evidence could make a difference. The detailed assessment will take place at the third stage and will include consultation with forensic scientists. Borderline cases will be included rather than excluded at each stage.”