Chambers’ pupil, Michael Masson, analyses the recent controversial case of footballer, Ched Evans

Chambers’ pupil, Michael Masson, analyses the recent controversial case of footballer, Ched Evans thumbnail

Case Comment: Acquittal of Ched Evans at re-trial following Court of Appeal quashing of conviction.

The Court of Appeal’s quashing of the 2012 conviction for rape of footballer Ched Evans and his subsequent acquittal at the re-trial has kicked a wasps’ nest of arguments back into the public consciousness.
Certainly, questions have been raised in some quarters about the rights to anonymity of both Defendants and Complainants alike but, perhaps more worryingly, questions are also being asked as to whether this case risks undermining victims’ confidence in the system - will women be deterred from coming forward to report sexual offences in the future? Given that Evans was acquitted following fresh evidence relating to the complainant’s previous sexual behaviour, can complainants now expect to have their own sexual history dragged up and criticized as a matter of course?
The short answer is no; the Court has always had the power to examine the sexual history of a complainant if it were relevant but it is bound by statute to only exercise that power in exceptional circumstances. It is important to note that a complainant’s previous sexual behaviour is generally irrelevant at the outset of a case and if they wish to ask questions about it, the Defence would have to apply for leave to adduce such evidence (s41(1) Youth Justice and Criminal Evidence Act 1999).
In deciding whether or not to allow such evidence to be adduced at all, the Court has to consider whether the behaviour in question is ”so similar… that the similarity cannot be reasonably explained as a coincidence” (s41(3)(b)). S41(1) of the YJCEA 1999 prohibits such a line of questioning without leave of the court specifically in order to avoid suggestions that because a woman has been unchaste she is more likely to have consented to intercourse and is somehow less credible
The Defence in this matter, in making such an application, had submitted that new evidence had come to light which was relevant specifically to the question of consent and that the original conviction was therefore unsafe. The Court of Appeal in considering the fresh evidence agreed that it revealed sexual behaviour that was “so similar… that the similarity cannot be reasonably explained as a coincidence” and allowed the appeal. On retrial Evans was acquitted and the cry went up that the CoA decision had driven a coach and horses through the starting position that a complainant’s previous sexual history is presumed irrelevant.
The facts were that on 29 May 2011, Evans and his co-accused, Clayton McDonald, had sex with X in a hotel room. McDonald had met X on a night out, taken her back to the room and had texted Evans, who promptly made his way to the room and seeing McDonald and X having intercourse, joined in. X woke up the following morning, professing to have no memory at what had taken place. Both men admitted that they had had sex with X, and were charged with rape, on the basis that X was too drunk to consent, and that whilst she herself does not remember being forced to have intercourse neither man could reasonably have believed that she was consenting given her intoxication. Both men asserted that they reasonably believed that the complainant was an enthusiastic and consenting party. At the first trial, McDonald was acquitted. Evans was convicted and sentenced to five years' imprisonment.
Evidence emerged that 2 other men had intercourse with X in the days and weeks around the time of the event in question and there were similarities in their descriptions of the behaviour of X, her preferred position, the words of encouragement she used to them and her attitude in taking charge of the encounters that matched Evans’ description of her behaviour with him. This supported the credibility of his description and so his argument that given her behaviour he reasonably believed that she consented to intercourse with him.
The difficulty is that the exception under which this evidence was admitted (s41(3)(b)) is supposed to present a “high hurdle of relevance and similarity” for the Defence to clear in order to succeed. In this case it is unlikely that anyone hearing or reading of the preferred position and words of encouragement described in the fresh evidence would consider them as particularly uncommon or unusual and therein lies the concern.
Whilst it is true to say that previous case-law considering this type of exception has said the behaviour need not be “rare” or “bizarre”, merely that it “go beyond the realm of what could reasonably be explained as a coincidence”, still the position and words of encouragement used might be considered quit commonplace. So much so, that it might be difficult to argue the references to such behaviour were anything more than just a coincidence. The legislation probably had in mind something slightly more memorable.
It might be argued that Court of Appeal has not applied the test strictly enough, however now that the retrial has taken place and Evans has been acquitted, that is the end of the matter in this particular case – the prosecution has no right of appeal in this instance. 
We can no doubt expect further clarification on the point from the Court of Appeal the next time it comes up for consideration in another case or possibly the intervention of parliament, perhaps to clarify what factors should be borne in mind by Courts when assessing the similarity of past behaviour.
In the meantime, it is worth noting that the evidence concerned was tendered to support Evans’ assertion that he reasonably believed the complainant consented, rather than solely to attack her credibility and it was considered in detail, not only by the jury in the retrial but also by the Court of Appeal before being put before the jury.
The prosecution, on behalf of the Crown and ultimately the complainant, certainly had the opportunity to challenge its relevance and to raise any questions as to the noteworthiness (or otherwise) of the complainant’s behaviour and yet, on re-assessment, Evans was acquitted.
As to whether complainants can now expect to have their sexual histories dragged up and aired by the Defence the position must surely be the same as it was before this case, i.e. generally it is irrelevant. If the Defence wish to adduce evidence in line with the exception set out at s41(3)(b) they will still have to apply for leave to do so and will have to show that the behaviour is ”so similar… that the similarity cannot be reasonably explained as a coincidence”. Given the furore surrounding this case, it is likely that the question of whether a behaviour does meet those requirements will come in for very close scrutiny by the court before leave to include it is granted.

Michael Masson