Andrew Malkinson: why cleared inmates have to pay back prisons from compensation

Critics are joining Andrew Malkinson in calling for an end to rules under which prison living costs are deducted from compensation payouts for wrongful convictions.

Malkinson, now 57, spent 17 years behind bars after being found guilty of rape, but his conviction was overturned last week after fresh DNA evidence linked another man to the crime.

While the false conviction is “disturbing enough”, said The Guardian, “it may get more Kafkaesque still”. If Malkinson receives financial compensation, an assessor will be expected to deduct “saved living expenses” to reimburse the prison service for the cost of his board and lodging. That a wrongly jailed person “can be charged in this way for their own wrongful imprisonment” is “jaw-dropping”, the paper argued.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

Who is Andrew Malkinson?

Malkinson was sentenced to life imprisonment in 2004, with a minimum of seven years, after being convicted of strangling and raping a woman in Salford, Greater Manchester.

He served a further ten years as he maintained his innocence. The former security guard's barrister, Edward Henry KC, said Malkinson would “not falsely confess to abhorrent crimes which he did not commit”.

He was released from prison in December 2020, but remained on the sex offenders register and “under close watch” by police, Sky News reported.

His conviction was finally overturned last Wednesday, when High Court judges ruled that the original verdict was “unsafe” after hearing new DNA evidence.

Speaking outside the London court, Malkinson said that he had been “kidnapped” by the state and that he was “enraged” by the possibility of having to pay money for the “torture” he endured for almost two decades.

What are the rules and why?

Malkinson, who is currently living on benefits, told the BBC that having to pay back the prison service after “you fight tooth and nail” for compensation was “kind of sick”.

Finding out about the potential living costs charge “was the final insult, as far as I was concerned, to an innocent man”, he said.

The rules date back to a House of Lords decision in 2007 relating to cousins Vincent Hickey and Michael Hickey, who were wrongly convicted of the murder of paperboy Carl Bridgewater in 1978. After the two men were freed by the Court of Appeal in 1997, then home secretary Jack Straw decided they were entitled to compensation, which amounted to £1 million and £550,000 respectively.

But “in each case, a 25% deduction was made from the section of their compensation which reflected their loss of earnings while in prison”, the BBC reported, “because of the living expenses they had not had to fund”.

The cousins appealed to the European Court of Human Rights (ECHR), but the court “ruled in favour of the law lords’ decision”.

Is Malkinson likely to win compensation?

According to the House of Commons Library, the “maximum amount of compensation payable is £1 million in cases where the applicant has been imprisoned for at least 10 years” .

Although all charges against Malkinson have been dropped, he “still hasn’t received a declaration of innocence” from the Court of Appeal, said Sky News.

Malkinson told the BBC’s “Newsnight” that the process was a “whole new battle”, adding: “They don’t like paying compensation and there’s resistance every step of the way.”

The Ministry of Justice told Sky News that compensation for miscarriage of justice cases was assessed on a case-by-case basis and that if compensation was to be awarded, the amount would be determined by an independent assessor, Dame Linda Dobbs.

The assessor would “consider deductions” including “substantial savings likely to have been made on the basis of living costs not incurred while in custody”, the MoJ said.

Conservative MP Bob Neill, chair of the Justice Select Committee, told BBC Radio 4. that it was “clearly not right” for somebody like Malkinson to have to pay back the state “for the privilege of having been wrong incarcerated”.

The Guardian argued that Malkinson has been “repeatedly let down by every level of the criminal justice system”.

His lawyer, Emily Bolton, director of legal charity Appeal, told the paper that if he were awarded compensation, an arcane system meant it would be “years” before he could receive the money.

Speaking outside the High Court last week, she added: 'The question which should trouble everyone is why it took nearly 20 years to get here.”

.