Malkinson: when an old forensic result needs a new question

365 ALTERAM analysis

Revisit the question that the original test could answer

A forensic report belongs to a particular moment: particular exhibits, available techniques and questions put to the scientist. In a later case review, repeating its conclusion without examining those limits can close an enquiry prematurely. The useful starting point is to establish what was tested, what remained unresolved and whether a new examination could distinguish between competing explanations.

This does not mean that newer testing will overturn an older result. It means that an instruction to reconsider evidence should identify a concrete opportunity rather than assume that the earlier work exhausted every question. Andrew Malkinson’s appeal demonstrates the importance of that distinction.

Public record

The public outcome and the evidence behind it

On 26 July 2023, the Court of Appeal quashed Andrew Malkinson’s convictions. Its written reasons, dated 7 August, explain that the prosecution at his 2004 trial depended on identification evidence; no scientific evidence supported his identification. Later DNA analysis produced findings that seriously undermined the case against him and implicated another man. [1]

The judgment records that important clothing exhibits had been destroyed, but samples recovered from them remained in a forensic archive. Further testing used techniques unavailable at trial. None of that additional testing indicated Malkinson’s DNA on the samples. The Court assessed those findings in the context of the evidence as a whole and found the convictions unsafe. It also considered separate disclosure grounds. [1]

The appeal judgment expressly confined its role to conviction safety rather than investigating institutional handling. On 18 July 2024, the CCRC published Chris Henley KC’s commissioned review and said it accepted its nine recommendations. Separately, the independent inquiry’s update of 15 July 2026 reported that work had resumed following the subsequent criminal proceedings, including examination of forensic actions and decisions. These are distinct processes and should not be presented as one completed investigation. [1][2][3]

365 ALTERAM analysis

Inventory what survives before commissioning another test

For a new authorised review, reconcile the exhibit register with laboratory holdings, retained extracts, slides, sampled material and existing analytical data. A missing original item does not establish that every derivative sample has also disappeared. Conversely, an entry in an old register does not establish that material still exists or remains suitable for examination. Obtain current confirmation from its custodian.

Give every retained item a documented link to its collection site, original exhibit and processing history. Record transfers, storage information, earlier sampling and any gaps. Distinguish material collected during the original investigation from later reference samples. Before further work consumes limited material, counsel and an appropriately qualified forensic scientist should agree the scope, permissions, preservation needs and priorities.

365 ALTERAM analysis

Turn a retesting request into competing propositions

Ask the scientist to review the earlier method and its stated limitations before selecting a new technique. The instruction should explain the disputed issue and provide relevant contextual material without telling the expert which conclusion to reach. Request written reasons if further testing is unsuitable, unavailable or unlikely to resolve that issue.

Frame alternatives explicitly. Is the dispute about whose biological material is present, whether a result can distinguish possible contributors, or how material came to be on an item? Those questions require different assessments. A laboratory result should not silently be promoted into an account of contact, timing or participation that the scientist has not evaluated.

Plan for outcomes that do not favour the applicant. Fresh analysis may support the original allegation, exclude a proposed contributor, reveal ambiguity or add little. Ask in advance how each possible outcome would affect the competing explanations. This makes the exercise an investigation rather than a search for a preferred answer.

365 ALTERAM analysis

Reassess the whole case without overstating the new result

When results arrive, connect them to the remaining evidence through a proposition-by-proposition review. Identify which earlier inference changes, which remains supported and which needs further enquiry. An absence of detected DNA should be interpreted with specialist advice about the material and testing circumstances; it should not automatically become proof that contact never occurred.

Preserve the distinction between a scientific opinion, an investigative hypothesis and the court’s ultimate assessment. Document disagreements and alternative interpretations rather than removing them from the summary. Where a finding is inconclusive, explain the limitation and the evidence that could resolve it.

365 ALTERAM can organise the surviving record, identify questions requiring specialist examination and coordinate independent review for defence counsel. The deliverable should show why further work is justified, what it establishes and what it cannot establish. Qualified scientists retain responsibility for their technical opinions, counsel directs legal strategy, and no testing programme can promise a particular appeal outcome.