Andrew Malkinson and Jason Moore were both convicted of serious violence based on eyewitness testimony, with no forensic evidence linking them to their supposed crimes. As proof of Mr Malkinson’s innocence leaves the Criminal Cases Review Commission (CCRC) mired in scandal, campaigners are asking: Is Jason Moore the next Andrew Malkinson?
An innocent man may have languished in prison for a decade longer than he needed to, after the body tasked with investigating miscarriages of justice bodged his case.
That was the conclusion of a damning review last week into the Criminal Cases Review Commission’s (CCRC) handling of Andrew Malkinson’s rape conviction.
The report was so damaging that justice secretary Shabana Mahmood is trying to force the CCRC chairwoman out of her job.
Meanwhile, in east London, supporters of murder convict Jason Moore say they feel vindicated by the report.
For years they have been complaining that Jason, currently serving life in prison, has also been let down by the CCRC.
They say the similarities between his case and Mr Malkinson’s are so substantial that Jason’s conviction now demands its own full re-evaluation.
Who is Andrew Malkinson?
Andrew Malkinson was convicted in 2004 of a brutal rape.
He was sentenced to life with a minimum of seven years, but served 17 because he refused to participate in rehabilitation courses that required him to confess to the crime.
In 2023, his conviction was quashed after DNA samples from all over the victim’s body, including underneath her fingernails, were re-tested.
They didn’t match Mr Malkinson.
They matched another man, known to the police, who has since been arrested.
What is the CCRC?
The CCRC was set up in 1997, in the wake of high-profile miscarriages of justice like the Guildford Four and the Birmingham Six.
Previously, only the Home Secretary could grant a convicted person another appeal, if their first appeal had failed.
But new laws transferred that power to the CCRC, also giving it the power to actively reinvestigate cases, demanding access to police files.
So why is it in trouble?
A review by top barrister Chris Henley KC has found CCRC processes went “badly wrong” in Mr Malkinson’s case.
The DNA exonerating him was available by 2009, yet the CCRC rejected his case in 2012.
Staff used “casual and dismissive” language, only investigated in a “superficial” way, and some of their work was “very poor”.
Records showed “fundamental misunderstanding and misrepresentation of the new DNA findings”.
“In my mind, there had been a complete failure to get to grips with the potential significance of this new DNA result,” wrote Mr Henley. “If the test had been applied properly the 2009 application would have resulted in a referral [to the Court of Appeal].”
Mr Malkinson applied again in 2018 but the CCRC again missed the exonerating DNA.
Instead, it was left up to the charity APPEAL to finally run the tests that proved his innocence.
“From everything I have seen I have no confidence that the CCRC would have agreed to undertake this crucial initial testing work themselves,” wrote Mr Henley.
And who is Jason Moore?
Jason Moore, from Canary Wharf, is serving life for a murder he insists he did not commit.
Robert Darby, 42, from the Isle of Dogs, was stabbed in the heart outside the Valentine pub, Gants Hill, in August 2005.
Seven years later, Jason was charged with the crime based on a single eyewitness identification.
He was convicted by jurors at the Old Bailey in 2013 and sentenced to a minimum of 18 years.
Newsquest has extensively investigated his case, uncovering new evidence that featured on BBC and ITV News.
The Free Jason Moore campaign has won high-profile support from MPs, justice campaigners, sports stars, authors and the Church of England.
Why is his case similar?
Both Jason and Mr Malkinson were charged based on eyewitness identification with no forensic evidence.
Mr Malkinson was arrested because a police officer thought he resembled an e-fit of the rapist. Two eyewitnesses and the victim then picked him from line-ups.
Jurors were not told that both eyewitnesses were serial criminals.
Mr Henley wrote that the case “provides a lesson about the very strong emotional pull of identification evidence… and its fallibility even when it comes from multiple witnesses”.
“The profoundly mistaken verdicts in this case underscore the danger of relying on identification evidence in the absence of any other independent supporting evidence,” he added.
How strong was the Jason Moore eyewitness evidence?
There were two eyewitnesses to Robert Darby’s stabbing but only one identified Jason – and that identification was at odds with his own initial description.
Both witnesses agreed Robert’s assailant was the same height as him (5’11”) and wore a blue zip-up jacket.
Jason is 6’4” in bare feet and CCTV shows he was not wearing or carrying a blue jacket.
The witness had told police the stabber had a shaved head, yet later picked out Jason, who had a mop of thick, dark hair.
He also told police that the stabber was the passenger from a small, silver Ford Fiesta. Jason had been riding in a brand-new, top-of-the-line BMW convertible.
Weeks after the stabbing, the witness had picked a different man as the stabber, who looked nothing like Jason and had a shaved head.
By the time he finally picked Jason, seven years later, police had already shown the witness Jason’s photo. Experts say the line-up should therefore never have taken place.
So what is the CCRC’s involvement?
The CCRC made a significant factual error when rejecting Jason’s case in 2021.
It wrote in its rejection letter that both eyewitnesses “agree that it was the front seat passenger” who stabbed Robert, and that it was accepted that this was Jason.
That was wrong on both counts.
Only one witness ever claimed to have seen the stabber exit a car – and that car did not resemble the one Jason is agreed by all parties to have been riding in.
The CCRC, in its rejection letter, refused a request that it re-interview the witness who identified Jason.
When Newsquest tracked him down instead, he blurted out that he was “drunk” when he witnessed Robert’s stabbing and might have identified the wrong man.
He also retreated somewhat from his claim that the stabber was a passenger in a car, saying he only saw them approach Robert “from the direction of” the car.
Our recorded interview with the witness is the subject of a fresh CCRC application, filed last year.
Could there be exonerating DNA in Jason’s case?
We don’t know.
Days after Robert’s stabbing, police raided the home of another suspect, who did match witnesses’ descriptions of the stabber.
The man had fled the country, leaving a “blue sports top” discarded on his bedroom floor.
Police seized it but did not DNA test it.
After the eyewitness made Jason the prime suspect seven years later, limited DNA testing was finally done on the cuffs and collar, excluding Jason as the wearer.
But once Jason was excluded, it was never comprehensively tested for traces of Robert Darby’s DNA.
Jason’s lawyers have asked repeatedly for more in-depth, up-to-date testing but the CCRC refused, just as it refused to re-interview the witness.
However, in last week’s report, Mr Henley called for “an immediate commitment to review all cases which have the potential for new DNA opportunities".
“It is almost impossible to believe that this is the only case that has not been handled properly,” he said.
Jason’s pro bono law firm, Shearman Bowen, has therefore called this week for the CCRC to “reconsider its refusal to carry out further DNA testing in his case”.
What does the CCRC say?
It refused to comment on Jason’s case, but said it had begun trawling more than 5,500 rape and murder cases on its books.
“We are currently focusing on cases where the identity of the offender is in question,” it said.
“We are limiting the exercise to those cases where the conviction was before 1 January 2016,” it added, as those were before newer DNA tests were introduced.
But it said: “We anticipate that only a small proportion of those cases will be ones in which there are new forensic opportunities.”
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