Barrister separates fact from fiction after footballer was acquitted of rape at his retrial
Top lawyer explains that even though Ched Evans was acquitted of rape it doesn’t mean he is innocent and why the jury was allowed to hear new evidence
A TOP lawyer has tried to separate fact from fiction after social media exploded with fury, celebration and speculation following Ched Evans’ retrial.
The footballer was acquitted of rape yesterday and a junior barrister working in criminal law has tried to make clear just what the decision taken at Cardiff Crown Court means.
Writing an anonymous blog under the name ‘The Secret Barrister’, the lawyer wrote a
1. So Ched Evans has been proved innocent, right?
Wrong. You’d be forgiven for thinking this, given that it was in the prepared statement read out by his solicitor, but Ched Evans has not “demonstrated his innocence”. That is not how our criminal justice system operates. It is not a means by which the truth of a situation or event is conclusively and fully determined.
Related Stories
Rather the jury are asked one simple question – are you sure that the prosecution has proved its case beyond reasonable doubt (or, as juries are commonly instructed, so that you are sure)? “Not guilty” means just that. The jury were not sure that he was guilty. They may have decided that he was totally, utterly innocent, but we don’t know.
All we know is that they considered the evidence, and were less than sure of his guilt. As I tell juries in every closing speech – if you think the defendant probably did it, he’s still not guilty.
2. Well at the very least, the verdict means that the complainant has lied, surely?
No. Absolutely not. A not guilty verdict in most cases is insufficient to safely infer that the jury have concluded that a complainant lied (as opposed to the jury not being sure one way or the other), but in this case the facts suggest the opposite.
As the Court of Appeal made clear in its judgment allowing the appeal, X has never asserted that she was raped.
She has always simply maintained that she had no memory of what happened. It was the prosecution case – the case theory of the Crown Prosecution Service – that she was raped.
The defence case was based not on the “usual” he said/ she said dispute over consent, but rather he said/ she can’t remember. There is absolutely no safe basis for suggesting she has lied, or, to quell the more hysterical calls, that she should be prosecuted on the basis of Evans’ acquittal.
3. Regardless, she has trashed his reputation and must be named and shamed.
That is extremely silly. And illegal. As a complainant in a sex case, she has anonymity for life. If you publicly identify her – including on Twitter – you will be prosecuted. It has happened before to friends of Mr Evans. It will happen to you.
4. How come she gets anonymity when he doesn’t?
Because that is the law. If you want to read my views on it, for what it’s worth, they are here. You may not like the law, but you should obey it. There’s some free advice.
5. This is a victory for rape apologists. She was blind drunk, he admitted not speaking to her before, during or after, and this shows that consent does not mean consent.
No it doesn’t. It shows simply that the jury were not sure of both of the following limbs to the prosecution case, that need to be established to prove rape:
(i) That X was not consenting (because she was incapable through intoxication);
(ii) That Evans did not reasonably believe X was consenting.
Now based on the evidence, including the fresh evidence (see below), it might be that the jury thought X was consenting. And if they did, having heard all of the evidence, they are in a far better position to make that assessment than anyone not in the courtroom. Drunk consent, as juries are reminded by judges, is still consent.
But it is equally plausible that they were sure that X could not consent, but were not sure, given her described behaviour, that Evans did not reasonably believe that she was not.
Even if the jury thought that X was not capable of consenting, and that Evans probably didn’t reasonably believe that she was, he would still be not guilty – not because of a flaw in the law, or inherent misogyny, but because of Question 1 above, the burden and standard of proof.
6. X was grilled on her sexual history, in contravention of the law. We’re back in the dark ages.
This was the analysis offered immediately post-verdict to the Guardian by Women Against Rape, a charity which should really know better, and Sandra Laville, the Guardian’s crime reporter.
It has since been adopted and virally transmitted throughout the media. Questions about a complainant’s previous sexual history are not allowed in sex trials, unless a very strict set of criteria (set out in section 41 of the Youth Justice and Criminal Evidence Act 1999) are met.
As the Court of Appeal explained (at [44]), these provisions are designed to counter the myths that “unchaste women are more likely to consent and less worthy of belief”. Yet X was cross-examined by the defence barrister over other sexual incidents – so what happened?
Well, in short, the law was followed. This point hinges mainly on “fresh evidence” that was not available at the first trial. Leave to appeal against Evans’ conviction was refused by the Court of Appeal in 2012, and Evans thereafter approached the Criminal Cases Review Commission with “fresh evidence” which had since emerged and which he claimed undermined the safety of his conviction. We now know that the principal nature of this fresh evidence was as follows:
A man, O, gave evidence that, two weeks after 29 May 2011, he had been out drinking with X, and had engaged in consensual sexual intercourse, during which she instructed him to penetrate her vaginally from behind, shouting, “Fuck me harder”.
A second man, S, gave evidence that, on 28 May 2011, X had engaged him in a night of drunken sexual activity, in which she adopted the same sexual position and used words, “Go harder”.
Evans’ case at trial was that X had acted in the same way on the 29 May 2011, encouraging him to penetrate her “doggy style” and using the words “fuck me harder”. This, it was argued, demonstrated that she was consenting, and also supported the reasonableness of his belief that she was consenting.
One of the exceptions under section 41(3) allows for evidence of sexual history to be adduced, and questions asked of the complainant about it, where the evidence relates to the issue of consent, and is of sexual behaviour of the complainant which is “so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused…that the similarity cannot reasonably be described as a coincidence”.
In short, it is beyond coincidence, the defence argued in the Court of Appeal, that X would consensually engage in this specific type of sex act using these specific words on occasions around the time of 29 May, but that she was not consenting in the same circumstances on that date. This tends to show that, drunk though she was, she was sufficiently in control of her senses to give consent, and, furthermore, to give Evans the impression that she was consenting. This, the defence argued, is relevant to the jury’s assessment of whether she was consenting, and whether Evans reasonably believed that she was.
The Court of Appeal, having considered other case law, agreed that in these unusual circumstances the fresh evidence ought to be admitted, and that X should be questioned on what the new witnesses had to say. Now it may be (I haven’t had the time to properly apply my mind to it) that a forensic analysis of the Court of Appeal’s reasoning will reveal a flaw, or an inappropriate leap, or even a misinterpretation of previous binding authority.
It may be that the Court’s application of the strict criteria for agreeing to admit fresh evidence was arguably not met. Such things are not unknown. The Court of Appeal sometimes fluffs up. But unless you’ve read the judgment, and have carried out the legal analysis and the research, you’re not able to say, are you? So, I urge you, stop spreading speculation which is not only misleading and removed from fact, but likely to deter victims from coming forward.
UPDATE: A special mention goes to the raft of claims in the press that this case sets a new, special precedent allowing the sexual history of complainants to be admitted in evidence in any future case, solely for the purpose of shaming the complainant in a dark return to the 1970s. Allow me to help: The precedent that has been set is none. The Court of Appeal decision sets down no new application of law or principle, and section 41 continues to operate exactly as it did before, excluding the vast, vast majority of questions about previous sexual behaviour.
The newspapers, activists and charities propagating this false message are needlessly terrifying present and future victims, and will only risk deterring them from coming forward.
7. But didn’t the prosecution suggest those “new witnesses” were paid to say what they said?
The prosecution did. They said that in the Court of Appeal, when they argued that the evidence shouldn’t be admitted, and they put it to the witnesses at trial. The jury heard the evidence, heard the questions and the witnesses’ answers, and made up their own minds.
8. So the acquittal shows that the CPS was wrong to bring the case at all, then. That’s what you’re saying.
No it isn’t. There was a case for Evans to answer. The fact that there was an initial conviction, and that in both trials the judge did not withdraw the case from the jury (which judges are bound to do if they feel that there is insufficient evidence for a jury safely to convict) shows that there was a case to answer. Whether, given that Evans had already served his sentence (and therefore would not have served any more time if re-convicted) it was wise to put the complainant through a retrial is arguable, but that’s a fight for another day.
9. Will the CPS appeal?
They can’t. There is no prosecution right of appeal. That is, or should be, the end of it.
10. What does this whole affair say about our society?
Christ knows. Nothing good.