Ched Evans

Ched Evans

Before I begin, I will say that at around 4,500 words this is probably the longest blog I’ve ever posted but I think it’s all necessary to set the scene for this case and explain the background that has been largely ignored or airbrushed in the press. Despite its length, I have not attempted to include every little detail of either fact or law but have done my best to provide a balanced picture of the Ched Evans case, what happened and why the courts reached the decisions they did.

There has been so much written about the Ched Evans case over the past weekend, much of it based on a very shaky grasp of the facts and law, that I decided I would read up about the case and weigh in (hopefully on a slightly firmer footing than most of the articles I’ve read so far).

Broadly speaking there seem to be three groups who have opinions on the case:

1.       Sexual violence groups (including people describing themselves as “radical feminists”) who appear to take the view that the case is awful, the Court of Appeal were wrong and the jury’s verdict was an outrageous win for rapists that will prevent women coming forward to complain about rape – although see the end of this blog for an alternative way the jury could have reached their verdict without reference to the new evidence;

2.       The (usually) men who hate feminists (radical or otherwise) who appear to think that it’s a bloody good thing Evans was acquitted no matter what; and

3.       Lawyers, who generally seem to think that most of those in groups 1 and 2 have failed to grasp the reality behind the case.

Nobody suggested X "was asking for it"

From what I have read online and in the press there is a common link between those in groups 1 and 2, which is that they have very fixed ideas on what the law is, what the law should be and that their personal opinions are infallible. It has to be said that very few people in either group appears to have actually read either the 2012 or 2016 judgments handed down by the Court of Appeal in this case and both do need to be considered to understand the case.

The Facts

On the evening of the 29^th May 2011, the complainant (the Court of Appeal calls her “X” and so I will do so as well), finished work around midnight then headed home to shower and change. She arrived at a bar in Rhyl around 1.30am on the 30^th May 2011 where she drank vodka and left around 3am. In her evidence, she said she could not recall leaving the club but did have a vague memory of being in a kebab shop. CCTV was found by the police, which showed her to be drunk. The Lord Chief Justice giving judgment in 2012 described the CCTV thus:

“The CCTV footage, which we have not seen because it is accepted that this was accurately summarised by the judge in his summing-up, showed that while she was inside the kebab shop she was unsteady on her feet.  At one point she fell over and landed on the floor. On the other hand, outside the kebab shop she could be seen eating pizza from a large box, although she was also seen to stumble, squat, lose her balance, and walk unsteadily.  Indeed, she left her handbag in the shop.  Based on this evidence, the prosecution case was that she was very drunk.”

In addition to the CCTV, various people who met X that night described her as being drunk.

Around 4am, X met a man called Mr McDonald who is a close friend of Mr Evans, in Queen Street. A conversation was struck up in which X asked Mr McDonald where he was going and he told her he was going to a hotel. X then said she would come with him. They got into a taxi together and headed to the hotel where they eventually had sex. During the taxi ride, Mr McDonald sent a text message to Mr Evans saying that he had “got a bird”.

The night porter at the hotel later told police that X had been “extremely drunk” when she arrived at the hotel.

Mr Evans had booked the hotel room in Mr McDonald’s name, both men would later tell the court this was so that Mr McDonald and another friend would have a place to stay and not, as the Crown said, so that they would have a place to take a girl for sex. Whatever the reason for booking the room, Mr Evans arrived at the hotel after Mr McDonald and persuaded the night porter to provide him with a key to Mr McDonald’s room saying that he had booked the room and his friend no longer needed it. The porter was suspicious and went to the room after Mr Evans had entered to listen at the door. He told the court that he heard the sound of a couple having sex and a male voice saying, “are you going to suck that cock?” He had no further concerns and so left.

The evidence from Messrs McDonald and Evans was that when Mr Evans entered the room, Mr McDonald and X were engaged in enthusiastic consensual sex. Mr McDonald asked X whether his friend could join in and she replied, “yes.” Mr Evans says that he then performed oral sex on X before having vaginal sex with her.

After the men had finished with X they both left, Mr McDonald via the hotel reception where he told the night porter to watch out for the girl in the room because she was not well. While Mr Evans left via a fire escape.

Nothing to suggest X told any lies at all!

The following morning, X awoke around 11.30am to find herself alone, naked and having soiled the bed. She had no recollection of the events of the night before that led to her being in the hotel room. She tried to piece together what happened with the help of her friends but when unable to do so was persuaded to speak with the police. It is worth saying that X did not report that she had been raped and has never claimed that she was raped, nor has she suggested that she was incapable of consenting to sex that night! Her evidence through both trials appears to have been that she could not remember what happened.

Expert evidence was called by the defence in the original trial that showed X’s blood alcohol level would have been around 2 and a half times the drink driving limit, which is about 87 microgrammes per 100 ml of breath – not an uncommon reading for somebody accused of drink driving (in once case I represented a man who blew 175 but was able to function so normally that the police did not seriously think he would be over the limit – they said so in their witness statements!) The defence expert said that this level of alcohol would cause slurred speech and unsteadiness on one’s feet but would not normally cause memory loss. The problem with evidence like this is that alcohol can have different effects on people. My client who blew 175 had a perfect recollection of events even though somebody else reaching that level might well struggle to survive at all.

The 2012 appeal

I’ll not spend too much time on the 2012 appeal beyond outlining what I see as the key points.

During the first appeal in 2012, the defence produced evidence from Professor John Birch, a psychopharmacologist (I had to study psychopharmacology at university and I can promise you it’s a very complicated subject). The Professor reported that the evidence in the case suggested that X’s short term memory was functioning but that alcohol interfered with the translation of short term memory into long term storage. He made clear that, “… the fact that she does no longer remember having made a decision is a failure of the memory process and not of the decision-making process. Evidence of memory loss as a result of anterior-grade amnesia does not in itself prove that she lacked the capacity to consent." This is not wholly different from the comments of the trial judge who told the jury that, “… there are various stages of consciousness, from being wide awake to dim awareness of reality.  In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. “

The first appeal was brought on three grounds, each of which were rejected:

1.       Fresh evidence from Professor Birch – this was rejected as adding nothing to the defence case and because the trial judge had dealt with the issues appropriately;

2.       Inconsistent verdicts – in the original trial Mr McDonald was acquitted while Mr Evans was convicted. On its face this may appear inconsistent but when you consider that a jury could decide that Mr McDonald reasonably believed X was consenting based on the circumstances in which they met, what happened prior to Mr Evans arrival and the fact he left via the front of the hotel, you can (and indeed the Court of Appeal did) conclude that there were sufficient differences to allow the two verdicts to be completely consistent with one another; and

3.       The “lurking doubt” principle – this effectively allows the appeal courts to overturn a jury verdict in the interests of justice. It is rarely successful and was not successful in this case.

The 2016 appeal

In March 2016, the Court of Appeal heard a second appeal against conviction following a referral to them by the Criminal Cases Review Commission.

This appeal focused on new evidence from three witnesses, Tristin Owens, Angela Owens and Steven Hughes, which Mr Evans new legal team said undermined the safety of his conviction.

The new evidence

Essentially, Tristin Owens and Steven Hughes are both men who have had sex with X both before and after the incident involving Messrs McDonald and Evans.

Mr Owens said he has known X for 13 years and Mr Evans for 7 or 8 years. He describes four occasions when he had been socialising with X at the Zu Bar when X had asked to come home with Mr Owens. On the first three occasions, although there was foreplay no sexual intercourse took place. On each occasion, X was unable to recall whether they had sex or not and asked Mr Owens. He says that he was surprised as she had not appeared that drunk the night before. The fourth occasion occurred on a Friday night around two weeks after the incident with Messrs McDonald and Evans. X had again approached Mr Owens in the Zu Bar and asked to come home with him, she was drunk but able to stand and talk. According to Mr Owens she promised that she would, “show you a good time” if he took her home. He agreed and they took a taxi to the home Mr Owens shared with his mother. On this occasion, they had sex. Mr Owens reports that X was shouting “fuck me, fuck me harder” and asked that they change positions so that they were in the “doggy” position.

Witnesses gave evidence they had not been paid reward

X provided a statement in which she said that she had sex with Mr Owens about two months before the incident in the hotel. But, Mrs Owens provided some corroboration to Mr Owens story by saying that she had seen X in bed with her son on a number of occasions. She asked whether they had sex but Mr Owens denied it because he did not want his mother to know. Mrs Owens says that she told her son that X had recently made a complaint of rape against Mr Evans and that Mr Owens should stay away from her. If true, it would clearly place the incident in the weeks after the hotel incident and not two months before as X claimed.

Steven Hughes met X through Facebook and in March or April 2011 the pair met in person at X’s workplace before going to Mr Hughes home for a party. X returned to Mr Hughes home the following day when they had sex. After this they met five or six times for sex. The first few times were by mutual arrangement but the last few were at X’s instigation when she would text him to meet her while she was drunk. Mr Hughes described one incident that occurred on the 28^th May, i.e. the night before the incident with Messrs McDonald and Evans, when he was awoken in the early hours by a call from X asking him to meet her. X was very drunk when Mr Hughes arrived and he had not previously seen her in that state. He described her as instigating all the sexual activity that night. They had sex in various positions, including in the doggy position. She demanded he “go harder, go harder” during sex and repeated this a couple of times.

Mr Hughes does not know either Mr Evans or Mr Owens personally.

Matty, Luke & Andrew: you are the problem!

X provided a statement in July 2015 in which she said she had sex with Mr Owens two months before the incident in question, not two weeks after. She said that she would never use the words, “fuck me, fuck me harder” as Mr Owens claimed. However, when asked about using these words during the original trial (as the defendants had said she used them), X said she could not remember and did not say then that they were words she would never say. She was not asked about sex with Mr Hughes at the time of the appeal and I have been unable to find a report of her answers to questions about this evidence from the second trial.

The law

We’re nearly 2,000 words in so, if you’re still with me, I suppose it’s probably time for a bit of law.

The Court of Appeal can overturn a conviction where it finds that had the new evidence been given at trial it could have affected the decision of the jury to convict. In considering this point, the Court of Appeal must have regard to the factors set out in section 23 of the Criminal Appeal Act 1968:

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

In establishing admissibility, the defence are at a disadvantage with this evidence because section 41 of the Youth Justice and Criminal Evidence Act 1999 states:

“If at a trial a person is charged with a sexual offence, then, except with the leave of the court—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant”

There are exceptions to this rule and it is the use of one of these exceptions that has caused so much controversy in this case. First, it is worth saying that the Criminal Cases Review Commission took the view that this evidence was admissible under section 41(3)(a) in that the evidence does not go to an issue of consent but rather towards whether Mr Evans might have a reasonable belief that X was consenting to sex with him. This argument does not appear to have been advanced by Counsel at the appeal. Instead Counsel relied upon section 41(3)(c)(i), which allows evidence that goes to whether X was consenting and where evidence of sexual behaviour of the complainant was so similar to what is said to have happened with Messrs Owens and Hughes that it cannot reasonably be explained as a coincidence.

The Court of Appeal considered the case of R v A (No. 2), which was decided by the House of Lords in 2002 and in which Lord Clyde said of “similar” evidence:

"It is only a similarity that is required, not an identity... Further the similarity must be such as cannot reasonably be explained as a coincidence. To my mind that does not necessitate that the similarity has to be in some rare or bizarre conduct. So long as the particular factor goes beyond the realm of what could reasonably be explained as a coincidence, it should suffice. Something about the sexual behaviour of the complainant on each of the occasions, such as something said or done by him or her which is not so unremarkable as to be reasonably explained as a coincidence has to be found."

The Court also considered R v T (Abdul), a 2004 case in which T was accused of raping his long term partner inside a climbing frame in a children’s playground. He sought to cross-examine his partner on the basis that they had similar consensual sex at the same location in the same position four weeks earlier. In that case, the court observed:

"It is now accepted that the evidence relating to the previous sexual intercourse within the climbing frame was similar within the wording of section 41(3)(c)(i). As it would seem to us, it is clearly arguable that the adoption of the same respective positions on that occasion as on the occasion the subject of the trial would also be similar within section 41(3)(c)(i). Indeed it is arguable that the consenting oral sex should be admissible, if not because it is similar, at least, in order to avoid there being an unfair trial."

So, we can see that to be similar evidence does not need to be rare or bizarre provided it is not so unremarkable that it cannot be reasonably explained by coincidence. We also see that evidence of sex taking place in the same location and same position can be similar enough.

                Defence case

At the appeal, Counsel argued that the similarities between the accounts of Messrs Evans, Owens and Hughes as to X’s sexual behaviour were so similar that they could not be mere coincidence. In particular, Counsel pointed to the fact that all three witnesses describe a woman who, in May and June 2011, would go out drinking, engage in sexual intercourse (both vaginally and orally) enthusiastically, direct her partners to have intercourse in particular positions and used a distinctive expression demanding “harder” intercourse with all three partners. One of the witnesses was able to give evidence of X failing to remember what had happened the night before on several occasions despite not appearing that drunk.

I suspect she might feel differently if she were on trial

The Defence argued that the new evidence was sufficient to establish a ground of appeal and that the explanation for it not being produced at the original trial was that neither Mr Evans nor the police were aware of the evidence of Mr Owens evidence at the time of the original trial. It was argued that while the defence did know of Mr Hughes evidence the trial lawyers had not appreciated that they might be able to rely upon his account because his original account lacked the detail necessary to alert trial Counsel to this fact and because his original trial lawyers had been focused on an alternative defence aimed at attacking X’s claimed amnesia.

                Prosecution case

The prosecution took the view that the evidence was not credible nor admissible for the purposes of section 23 of the Criminal Appeal Act 1968.

In respect of admissibility, the Crown argued that simply being a sexually active woman who enjoys sex is far from unusual. Counsel described the words “fuck me harder” as a common expression that can reasonably be explained by coincidence. Sadly, the report does not reveal whether Counsel relied on any evidence to back up the assertion that this expression is common. The court would later criticise this approach, pointing out that the test is whether the facts are “similar” not “unusual” as was made clear in R v A (No.2).

In respect to the witnesses’ credibility, the Crown argued that the new witnesses had been put up to giving their account and fed information by people close to the appellant. Counsel also argued that the witnesses were not sufficiently consistent with Mr Evans’ account. At the second trial, the Crown alleged that both men had been motivated by a £50,000 reward put up by friends of Mr Evans.

The prosecution said that there was no good explanation for why this evidence was not used at the first trial and, in any event, the court should not encourage this type of post-trial investigation into the sexual behaviour of a complainant.

At this point, I must say that I disagree with the Crown’s point about post-trial investigations. If somebody is innocent, then that is the most important thing and if evidence comes to light to show it then we should not ignore it merely out of principle.

                The Court’s decision

We know, of course, that the Court found the evidence was capable of belief – that does not mean that they accepted it but merely that it is something that a jury could believe. They did find that there was a reasonable explanation for the failure to adduce the evidence at trial and so we turn to the question of admissibility, which has got everybody so worked up.

Lady Hallett giving judgment for the Court said that the three appeal judges had been satisfied that the evidence would have been relevant and admissible at trial and is, arguably, sufficiently serious to come within the terms of section 41(3)(c)(i). Not only that but it may also have been admissible under section 41(3)(a) as going to whether Mr Evans would have had reasonable belief that X was consenting.

Lady Hallett highlighted that the evidence of the two independent witnesses showed a woman who had been drinking, instigated sexual activity, directed her partners into particular positions and used specific words of encouragement. She made the point that the Crown had erred in arguing there was nothing unusual about X’s behaviour because the test is whether the behaviours are similar, which is clear from the case of R v A (No. 2).

Lady Hallett went on to say that complainants in these cases deserve protection from intrusive and unnecessary questioning about their sexual history. She said that this type of evidence and questioning should only be allowed in very extreme and rare cases. The court decided that this was one such rare case and allowed the appeal.

Press reports

You can decide for yourself whether you think these facts are so similar that they should have been put before the jury. But, I have to say that the mass-hysteria that seems to have taken over much of the press is unwarranted and, far worse, it is ultimately self-fulfilling.

Uninformed reporting will do this not the Evans case

A number of reports have concluded that this is a step backwards to the bad old days when past sexual history of rape complainants was fair game. The complaint that this will simply encourage the old tactic of getting a few mates to say they all had sex with the girl the week before and she was well up for it is a nonsense. There are, as we’ve seen, strict rules for allowing this evidence to go before a jury. In this case, X’s whole sexual past was not fair game and the defence were limited to the very specific incidents detailed by Messrs Owens and Hughes and the similar experiences they recounted to that of Mr Evans. There was no headlong attack on X’s past, rather a detailed and forensic approach to events that the Court of Appeal considered to be so similar that they could not be ignored. Had X’s evidence been that she did not consent rather than that she did not remember then the Court of Appeal may have reached a different decision.

The rules on admitting past sexual history evidence have existed since 1999 and, thus far, the old tactics have remained dead. There is nothing in the Evans case that creates a new legal precedent for how future courts will approach these cases, indeed, the case relies heavily on cases from the early 2000s, none of which managed to open the floodgates to attacks on the sexual history of complainants.

If journalists were to report that fact, then there could be little or no suggestion that the Evans case will put people off making future complaints of rape and sexual assault. By the way, note I use the word “people” not “women” because men are frequently the victims of rape and sexual assault too – in 1998 there were 2.78 million male rape victims in the USA and in the UK there are 12,000 rapes committed against men each year, far less than are committed against women but not so few that they should be ignored by campaign groups as they frequently seem to be.

Journalists work because people will buy their publications. Pressure groups exist because they can keep their issue in the press. To that extent there is little incentive for either newspapers or pressure groups to provide an honest, accurate reflection of the law and how it was applied in this case because stories saying “rarely used law applied in exceptionally unusual case” just doesn’t sell stories or keep your issue in the public eye.

Was it the new evidence that won the case?

Of course, while everybody is getting worked up about this case being won because of the new evidence allowed in by the Court of Appeal it’s worth remembering that we have no idea how significant the jury found that piece of evidence.

The judge in the second trial provided three steps for the jury to consider:

1. Are you sure that when the defendant intentionally penetrated the vagina of the complainant she did not consent?

2. Are you sure the defendant did not genuinely believe that the complainant consented?

3. Are you sure that the defendant’s belief in the complainant’s consent was reasonable?

Clearly if the jury answered “no” to questions 1 or 2 or “yes” to question 3 then they must acquit.

For all we know, the jury of seven women and five men may have concluded that the accounts of Messrs Owens and Hughes were an unimportant distraction from the real issue of whether X actually had capacity to consent to sex. The Crown’s case was always on the basis that she lacked the ability to consent, since X cannot say what happened the Crown cannot say that she refused to consent.

I think that a very important exchange took place when Ms Khan QC for the defence was cross examining X in the second trial. Here is how it was reported by the Sun on their live update at the time:

“Ms Khan is asking about a text message the complainant sent to a friend.

She said: “You will accept at that time, you were capable of texting, spelling it all correctly and putting a kiss at the end?”

The complainant agreed.

The defence barrister put it to the woman she was able to order food in the takeaway, although she was in “memory blackout”.

The woman said she could not remember.

Ms Khan then asked about the complainant’s actions in the taxi. The court heard she was told by the driver she could not eat pizza in the back so got out and into the front seat.

The defence barrister said: “You were capable of understanding instructions and understanding what was being said?”

The complainant agreed.

Ms Khan said: “Looking at all of those actions, although you were in memory blackout, that does not mean you were unconscious, incapable of movement, incapable of making decisions?”

The woman agreed.”

Taken with the expert evidence of Professor Birch that a failure in memory does not imply a failure in decision making skills, which was presumably relied upon by the Defence and the direction the jury would undoubtedly have been given by the judge as happened in the first trial. Defence Counsel certainly reminded the jury that a person can be drunk and consent several times and that she can fail to remember what happened but that does not vitiate consent if she had capacity to give it. On that basis, you may think that the jury could have reached their verdict without any reference whatsoever to the new evidence from the two former partners.