https://www.private-eye.co.uk/in-the-backANY investigation into the justice system's handling of the case of Andrew Malkinson, who spent 17 years in jail for a rape he did not commit, should be extended to other troubling convictions.
Malkinson would have been freed years earlier, had the Criminal Cases Review Commission sent his case back to the appeal court after it emerged that in 2007 police and prosecutors knew another man's DNA was on the victim's clothing.
But as Eye readers know, his is not the only case where the underfunded and overwhelmed watchdog has refused to act – the most recent being that of Robin Garbutt, who was jailed in 2011 for killing his wife at their village post office (Eyes passim).
Midlothian muddle
In Scotland, meanwhile, the Scottish Criminal Cases Review Commission (SCCRC) and its justice system are equally reluctant to right wrongs.
The case of Luke Mitchell, now 34, who has spent 20 years protesting his innocence, bears all the hallmarks of a grave miscarriage of justice. They were evident from the moment he was interviewed by police as a vulnerable 14-year-old without an adult present, suspected of killing his girlfriend, Jodi Jones, also 14.
Her mutilated body was found in woodland on the outskirts of Dalkeith in Midlothian. The pair had been due to meet, but Mitchell said Jodi had failed to turn up. The teenager and his dog later joined a search party after Jodi failed to return home, and it was his dog that found her.
That was enough for the police to be convinced he knew exactly where to look. Even though there was no forensic evidence to link Mitchell to the murder, the teenager with no police history had suddenly become a psychopathic killer.
He was convicted by a majority verdict in 2005, after his brother failed to corroborate his alibi that he was at home at the time, and on highly questionable identification evidence.
Manson myth
Newspapers carried lurid reports of detectives' belief he was inspired by Marilyn Manson and a painting by the goth singer depicting supposedly similar injuries to those inflicted on 1940s Hollywood actress Elizabeth Short in the so-called Black Dahlia murder.
That was nonsense, says one of his legal team, Scott Forbes. The reality was that Mitchell was seen near his home about 50 minutes after Jodi was said to have been tied up, assaulted and killed.
As a 2021 Channel 5 documentary illustrated, that would make it all but impossible for him to have been the killer. He could not have returned home in broad daylight, unseen and covered in blood, and disposed of all incriminating evidence.
Dishing the dirt
Two former detectives, who spent a year re-investigating the crime, said that when examined that night he had unwashed hair and mud under his fingernails, which proved he had not showered. Crucially, they identified other "stronger suspects", three of whom were at or near the scene at the time. But they were never treated as such by the police.
After the documentary was screened, Forbes applied for access to exhibits and material gathered in the case in order to carry out new forensic tests, only to learn the police were in the process of destroying it. The destruction was halted by the Lord Advocate's office.
All that remains are 300 scrapings and swabs, including ten taken from Jodi's body containing semen deposits, which incredibly were never tested for DNA at the time.
Wanton destruction
"Over 3,000 items were destroyed," Forbes told the Eye. "You must ask, what did the police so suddenly want to hide? I have no doubt Luke is innocent – failed by the police, a hostile press and a poor defence at the time." Mitchell's hopes of freedom now rest on securing and testing the swab samples. As Andrew Malkinson's case so graphically illustrated, that should be ordered immediately by the SCCRC.
