Using Evidence of Previous Sexual History in Rape Cases: The Ched Evans case

This piece is the first in a three-part series assessing the Ched Evans case and the use of evidence of previous sexual history in rape cases in the U.K. Click the links to read Part Two and Part Three 

Using Evidence of Previous Sexual History in Rape Cases: The Ched Evans case, Part 1

by Molly Joyce.

 On 14 October 2016 the footballer Ched Evans was acquitted of the charge of rape, and a five-year saga that started in a hotel room in a small town in Wales on 29 May 2011 was put to a close. The case attracted significant media coverage and ignited a fierce debate in the UK about whether or not the complainant’s sexual history should have been considered by the jury. That debate essentially boils down to a question of whether or not section 41 of the Youth Justice and Criminal Evidence Act 1999, a legal provision that was introduced to ensure evidence of a complainant’s sexual history is used in only the most limited of circumstances, is effective in achieving its aim. The tone of the debate as played out in the newspapers and on social media, however, has greatly complicated this basic question and has often overlooked the essential legal issues at play in Evans’ case. This post (the first of a series of three) therefore tries to examine the legal details of Evans’ case in a clear, dispassionate way that helps readers understand why Evans got a retrial and why evidence of the complainant’s sexual history was introduced in his trial. In this way, I hope to contribute to creating a more informed and balanced debate around the treatment of rape allegations, and the treatment of complainants in such cases, in our criminal justice system.  

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You would be hard-pressed to find anyone living in the UK who has not heard about the Ched Evans case. When the verdict at Mr Evans’ retrial came out in October 2016, it occupied our airwaves and was covered extensively by both the tabloids and the broadsheets. It caused furore among women’s rights activists and attracted harsh criticism from many prominent people, including the former Solicitor-General Vera Baird[1] and more than 40 female Labour MPs, who called for a reform of the law in this area.[2] While Evans was before this case a minor celebrity, the high-profile nature of the case was perhaps unsurprising: it had sex, money, fame, betrayal and football i.e. all the elements of a good news story.

In the media frenzy that surrounded the case however, something was lost. That something is a clear, dispassionate, accurate explanation of the law which allowed Evans his retrial and allowed his lawyers to bring in evidence about the previous sexual history of the woman at the centre of this case (in keeping with the Court of Appeal’s approach, I will refer to this woman as ‘X’ throughout the remainder of this blog post[3]). This post (the first of a series of three) aims to provide such an explainer that will help readers understand what it is that actually happened in respect of the legal aspects of this case and, in this way, create a more informed debate as to the proper way in which allegations of rape and sexual assault should be handled in the future.

Background

The basic facts of this case are probably familiar to most readers. On the night of 29 May 2011, Evans went out in his hometown of Rhyl, Wales, with his friend and fellow footballer Clayton McDonald. At around 4.00am the next morning, McDonald met X at the Rhyl Zu bar. X then accompanied McDonald back to a room at a Premier Inn in the nearby town of Rhuddlan,[4] which Evans had earlier that evening booked for McDonald (and allegedly another friend) because he thought it would be “more comfortable” than having them stay in his family home. On their taxi journey back to the Premier Inn, McDonald texted Evans to say he had “got a bird.” Evans then arrived at the hotel by taxi around 10-15 minutes later with his brother and another friend. He maintained in his evidence that he went to the hotel in order to tell McDonald that one of their other friends had been arrested following a fight and also to see who the girl was that McDonald had brought back. Evans went into the hotel, alone, and persuaded the receptionist to give him a key card to McDonald’s room, telling him he had booked it for a friend who no longer needed it. When asked why he lied to the receptionist, he responded that he was simply “being juvenile, having a laugh” and that his intention was to “go into the room, see what they were doing.” He didn’t knock before entering the room. Upon entering and the door slamming behind him, Evans observed McDonald and X having sex. At that point, McDonald apparently looked at X and asked “can my mate join in?” Evans stated that she said yes and he proceeded to perform oral sex on her and have full sexual intercourse with her. While this was happening, Evans’ friend and brother were seen standing outside the room (which was located on the ground floor) giggling and filming what was happening until McDonald closed the curtains. After about 30 minutes, McDonald left the hotel, by the reception desk, and Evans left shortly after that, by the fire door. He stated at the retrial that he used the fire door because he wanted to walk directly to the road outside. Evans and McDonald then returned to Evans’ family home.[5]

X woke up the next day at about 11.30am, “naked, alone and confused.”[6] She didn’t know where she was and had only vague recollections of being in a take-away the night before. When she woke up, she “panicked”: her clothes were scattered on the floor and she couldn’t find her handbag.[7] Not remembering how she had arrived at the hotel, X tried to piece together what had happened with friends and later that day went to the police. X did not at this point allege she had been raped; in fact, she has never alleged that she was raped or incapable of consenting to sex. Her evidence has always been that she simply cannot remember what happened in the hotel room.[8]

McDonald and Evans were arrested on suspicion of rape on 31 May 2011. In their police interviews, they both volunteered the information that they had had sex with X. In this sense then, the evidence as to sexual activity on the night in question came solely from Evans and McDonald themselves.[9]

The first trial saw both McDonald and Evans charged with rape. The verdict in that first trial was handed down on 20 April 2012, with the jury finding McDonald “not guilty” and Evans “guilty”.[10] Evans was sentenced to 5 years in jail. He served two and a half years of this sentence before being released on 17 October 2014 (this is a common mechanism that is available to prisoners sentenced to more than 12 months in prison[11]). At the time of his appeal and retrial, Evans was no longer in prison.

Appeal

It is difficult to successfully appeal a finding of guilt: the Court of Appeal generally dislikes quashing a jury’s decision.[12] The legal test for overturning an appeal is whether or not the Court of Appeal thinks the conviction is “unsafe”. This means that Evans had to persuade a judge his conviction was “unsafe” if he was to be successful in appealing it. The term “unsafe” clearly does not lend itself to a very precise definition and a conviction may be “unsafe” due to a myriad of different reasons. Whether or not the court thinks a conviction is “unsafe” will therefore often depend on its assessment of the individual facts and circumstances of the particular case and whether the court has “real doubts” that the appellant was guilty of the offence of which he was convicted.[13]

The first step for a convicted person in appealing their conviction is to put together the “grounds of appeal” and a “summary of the facts” for the “Single Judge” (one judge sitting alone) to review. That judge will consider the grounds of appeal and the facts as summarised, usually without hearing any oral evidence about the case, in order to decide whether or not to give permission for the appeal to go forward. If the judge decides not to give this permission, the convicted person can “renew” their application for appeal: this renewed application is considered by the “Full Court” (three or more judges sitting together).

In this case, Evans followed this exact process. He immediately appealed his conviction on the following grounds: there had been “inconsistent verdicts” (remember McDonald was found “not guilty” and Evans was found “guilty”); there were problems with the trial judge’s summing up of the case; and Evans had obtained fresh expert evidence about X’s black-out and lack of memory.[14] On 10 August 2012, the Single Judge rejected his application and refused him permission to appeal. Evans then renewed his application to the Full Court: this application was rejected by the Full Court on 6 November 2012.[15]

The renewed application to the Full Court is not, however, the final step in appealing a conviction. In England & Wales there exists an independent, non-governmental body called the Criminal Cases Review Commission (the “CCRC”). People convicted of crimes can submit their claim of innocence to the CCRC and ask the CCRC to refer their case to the Court of Appeal for a full appeal. The CCRC also has the power to investigate the cases submitted to it and can use its various powers to uncover new evidence. The CCRC will only refer a case to the Court of Appeal where it is of the opinion that there is a “real possibility” that an appeal will be allowed.[16] This is a fairly lengthy process insofar as it essentially involves two steps: first, the person has to convince the CCRC that there is a “real possibility” the Court of Appeal will allow the appeal; second, if the person is able to convince the CCRC of this, they then have to convince the Court of Appeal to allow the appeal and quash their conviction.

Evans followed this process and asked the CCRC in July 2014 to examine his case in the hope that they would refer his case to the Court of Appeal. The CCRC fast-tracked Evans’ application (for reasons that are not entirely clear – the decision was made in response to Evans’ defence team’s request for prioritisation of his case[17]) and began their inquiry into the safety of his rape conviction in December 2014.[18] Following a 10-month investigation, the CCRC decided in October 2015 to refer Evans’ case to the Court of Appeal. They made this referral on the basis of “new information which was not raised at trial, and which in the view of the Commission, could have added support to Mr Evans’s defence at trial and therefore raises a real possibility that the Court of Appeal may now quash the conviction.”[19] This allowed a full appeal to be considered by the Court of Appeal.

It cannot be underestimated how difficult it is to get through this first hurdle: of the approximately 21,420 applications the CCRC has handled since it started work in April 1997 it has only referred 625 cases to the Court of Appeal.[20] That means roughly only 3% of all cases referred to the CCRC are successful in making it back to the Court of Appeal.

Evans’ case was referred to the Court of Appeal specifically on the basis of fresh evidence from three people (“fresh evidence” meaning evidence that was not heard by the original jury in the first trial). I will refer to these three people as: Mr O; Mr O’s mother; and Mr H. Mr O and Mr H were two men with whom X had had sexual encounters before and after 29 May 2011. Their evidence was essentially that X had, when having sex with them, used similar language and adopted similar behaviour as that described by Evans in his interviews with the police. This kind of evidence is known as evidence about a complainant’s “sexual behaviour” or “sexual history” and it is the inclusion of this evidence that both formed the basis of Evans’ successful appeal and led to the most controversial aspects of this case. The Court of Appeal essentially found that the evidence from these two men, which had not been available at Evans’ first trial, was “relevant” and “admissible” and its lack of availability at the previous trial rendered Evans’ conviction “unsafe”.

The key question then is how this kind of evidence was deemed to be “admissible”: how did the Court of Appeal come to the conclusion that evidence of the complainant’s sexual history, which has in the past been used to perpetuate the “twin myths” that “unchaste women are more likely to consent to intercourse and in any event are less worthy of belief”,[21] should be heard by a jury? In order to understand this, we need to look at a complicated piece of legislation: section 41 of the Youth Justice and Criminal Evidence Act 1999. This will be examined in Part 2.

A Note on the Women Are Boring blog
Women Are Boring is dedicated to disseminating interesting research, opinion and analysis by interesting women.  As with all things worth doing, we are aware that research is debatable and worthy of contestation. This is something we encourage. As such, the opinions and views shared are those of each individual article’s author.

[1] Vera Baird, “We cannot allow the courts to judge rape by sexual history” The Guardian 17 October 2016, available at: https://www.theguardian.com/commentisfree/2016/oct/17/courts-judge-rape-sexual-history-ched-evans-case.

[2] Rowena Mason, “Female Labour MPs call for legal change following Ched Evans retrial” The Guardian 23 October 2016, available at: https://www.theguardian.com/society/2016/oct/23/female-labour-mps-write-to-attorney-general-over-ched-evans-case.

[3] Chedwyn Evans v R [2016] EWCA Crim 452, [1].

[4] See “Footballer Ched Evans ‘raped woman in Rhyl hotel room’” BBC News 4 October 2016, available at: http://www.bbc.co.uk/news/uk-wales-37551789.

[5] See generally “Ched Evans rape trial: Footballer says sex with woman in hotel room was consensual” Wales Online 10 October 2016, available at: http://www.walesonline.co.uk/news/wales-news/ched-evans-rape-trial-footballer-12001362. This gives a live feed report of what was said in evidence during the retrial.

[6] Chedwyn Evans v R [2016] EWCA Crim 452, [10].

[7] See generally “Ched Evans rape trial: Live updates as alleged victim describes how she ‘panicked’ on waking in hotel room with clothes scattered around her” Wales Online 5 October 2016, available at: http://www.walesonline.co.uk/news/ched-evans-rape-trial-live-11979395. This again is a live feed report of what was said in evidence during the retrial.

[8] Chedwyn Evans v R [2016] EWCA Crim 452, [10].

[9] Chedwyn Evans v R [2016] EWCA Crim 452, [11].

[10] Chedwyn Evans v R [2016] EWCA Crim 452, [16].

[11] See https://www.citizensadvice.org.uk/Documents/Advice%20factsheets/Prisoners/p-early-release-from-prison—serving-your-sentence-in-the-community.pdf.

[12] This can be seen by the statistics of successful appeals: over the past few years only 8-14% of appeals against conviction were successful and in the 2014-2015 period 79% of all applications to appeal against conviction were refused permission, see Court of Appeal (Criminal Division) Annual Report 2014-2015, available at: https://www.judiciary.gov.uk/wp-content/uploads/2015/12/coa-criminal-division-annual-report-2014-15.pdf.

[13] See the judgment of Lord Bingham CJ in R v Criminal Cases Review Commission ex p Pearson [2000] 1 Cr App R 141 for a discussion of the meaning of “unsafe”.

[14] Chedwyn Evans v R [2016] EWCA Crim 452, [2].

[15] See R v Chedwyn Evans [2012] EWCA Crim 2559.

[16] See section 13 of the Criminal Appeal Act 1995.

[17] See “Legal watchdog to fast-track inquiry into rape conviction of Ched Evans” The Guardian 18 October 2014, available at: https://www.theguardian.com/society/2014/oct/18/legal-watchdog-fast-tracks-ched-evans-rape-inquiry.

[18] See “Ched Evans timeline: Key events since player’s release” BBC News 10 January 2015, available at: http://www.bbc.co.uk/sport/football/30671836.

[19] See “Commission refers the rape conviction of Ched Evans to the Court of Appeal” CCRC 5 October 2015, available at: http://www.ccrc.gov.uk/commission-refers-the-rape-conviction-of-ched-evans-to-the-court-of-appeal/.

[20] See http://www.ccrc.gov.uk/case-statistics/.

[21] Chedwyn Evans v R [2016] EWCA Crim 452, [44].

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