Ched Evans situation

[DaveR]

I assume that the guy was sentenced to life, hence no remission and no automatic parole. Evans got a fixed term so automatic release after a certain period

[JohnL]

Yes maybe - he 'already had a criminal record' - so maybe he had 3 strikes and you're out.

[jacks09]

I still genuinely don't know what is right in this situation - but given the quashing of his conviction today and order of a re-trial - should he be allowed to resume his football career?

[JohnL]

New evidence ?

Suppose this is sub judice again now :).

[*Bob*]

Being called 'Ched' should be a criminal offence.

The parents should be prosecuted to the full extent of the law.

[Loz]

jacks09 Wrote:

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> I still genuinely don't know what is right in this situation - but given the quashing of his

> conviction today and order of a re-trial - should he be allowed to resume his football career?

Since there is a retrial ordered, I'd guess not until that is over. If he is found guilty again, then it will remain as it were. Should that have a 'not guilty' verdict, then there should be no impediment to his career.

[Otta]

3 judges quashed the original conviction, that's a pretty strong statement.

[JohnL]

Otta Wrote:

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> 3 judges quashed the original conviction, that's a

> pretty strong statement.

The reasons can't be given until the conclusion of the retrial.

https://www.judiciary.gov.uk/judgments/r-v-chedwyn-evans/

[DaveR]

It was a 'fresh evidence' case, so the question for the appeal court is "are we sure that this evidence would not have made any difference to the verdict?". If the answer is 'no', conviction is quashed. Second question is 'with this evidence is he bound to be acquitted (or is there any other reason not to have a re-trial?". Answer 'no', so re-trial it is. No point in trying to predict the outcome of that without knowing what the fresh evidence is - obviously enough to be capable of doubting the previous verdict, bur definitely not a clear cut winner.

[Mick Mac]

This is a very interesting case. And quite exceptional it seems.

https://www.theguardian.com/society/2016/oct/14/campaigners-fear-evans-case-will-stop-women-reporting

However, the defence can get such testimony heard ? and thus open the alleged victim up to potentially hugely intrusive and upsetting questioning ? if the crucial issue is consent and the behaviour the witnesses claim is so similar to how a complainant is said to have acted during an alleged offence that it cannot reasonably be explained as coincidence.

[Sue]

It seems like a very great deal of money was available to the defence. Including a large reward offered for evidence?

I don't know all the details, but from what I have read I think a very dangerous precedent seems to have been set in allowing a victim's previous sexual activity to have a bearing on a case of alleged rape.

I thought the law had been changed to prevent this?

I hope that there were very good legal reasons for it in this case, because on the face of it it seems that someone who can afford it has paid shedloads of money to get himself off the hook.

I hope I'm wrong and that the victim was not telling the truth, but I know what my gut feeling is at the moment.

I haven't read the rest of this thread though.

ETA:. Ooops just read a bit of it so apologies for jumping in if all this has already been discussed :(. I'll read the rest later.

[ianr]

The judgment in the Court of Appeal hearing in which his conviction was quashed, [2016] EWCA Crim 452, has now been published. There's a copy at https://www.crimeline.info/case/r-v-ched-evans-chedwyn-evans-1.

[Jah Lush]

From The I Paper.

10 myths about the Ched Evans case debunked

Secret Barrister?16:11?Saturday October 15th 2016?

iNews

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. Rather the jury are asked one simple question ? are you sure that the prosecution has proved its case beyond reasonable doubt? ?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.

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 has concluded that a complainant lied, but in this case the facts suggest the opposite.

As the Court of Appeal made clear in its judgment allowing the appeal, the complainant, 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.

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.

4. How comes she gets anonymity when he doesn?t?

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.

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:

?Fuck me harder??

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.

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.

?Sufficiently in control of her senses??

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.

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.

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.

[Sue]

Scotland has a possible verdict of "Not proven".

Why doesn't England?

[Jah Lush]

He knows what he is.

[Mick Mac]

Other sexual activity is only included if it meets a high relevance criteria. There is no change to the law as a result of this case

He is not guilty. That means exactly that

Drunken consent is still consent

This girl called the police to report her lost handbag. The police asked her how she lost it and suggested she may have a case for rape against the two people.

Both have been found not guilty.

He seems like a very disrespectful person but it seems that's as far as it goes.

Unless of course you believe the judge and jury came to the wrong conclusion, but the law is there to make decisions.

The female judge I believe made the decision to include her sexual behaviour (post event behaviour in this case) as relevant.

[P.O.U.S.theWonderCat]

A verdict of not guilty doesn't mean he is innocent. It just means that there was not sufficient evidence to prove his guilt beyond reasonable doubt.

"Drunken consent" is not consent if the person lacks capacity.

There are a whole heap of things that concern me about this case, including the inferences that were allowed to be drawn from the similarity of language that was clearly uttered after penetration and therefore after the point where he was obliged to obtain her consent. However, the thing that bothers me the most though is the incorrect assertions that are now being made by lay people as to the law where rape is concerned.

[Otta]

This is the best thing I've seen written on it.

https://thesecretbarrister.com/2016/10/14/10-myths-busted-about-the-ched-evans-case/

[Otta]

Sorry I hadn't seen this page, and Jah has posted the text from the link above.

[Mick Mac]

P.O.U.S.theWonderCat Wrote:

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> A verdict of not guilty doesn't mean he is

> innocent. It just means that there was not

> sufficient evidence to prove his guilt beyond

> reasonable doubt.

>

> "Drunken consent" is not consent if the person

> lacks capacity.

>

> There are a whole heap of things that concern me

> about this case, including the inferences that

> were allowed to be drawn from the similarity of

> language that was clearly uttered after

> penetration and therefore after the point where he

> was obliged to obtain her consent. However, the

> thing that bothers me the most though is the

> incorrect assertions that are now being made by

> lay people as to the law where rape is concerned.

I wonder how many people making comments have read the full decision from ianr's post above.

Having read it all I think it's the right decision.

Drunken consent is still consent. Xs ability to consent and instigate and control sexual activity when drunk was examined by reference to accounts from other sexual partners

The similarities between her activity with other partners was seen as support for the evidence given by the defendant

Failure to remember likewise does not mean X did not consent. This was examined closely in this case by reference to other relationships. There were other times when she instigated sexual activity and failed to remember the following day.

Information gathered at the initial case later was agreed to be relevant and admissible and there were further statements made after the first hearing that were thought to be relevant by the court.

[Mick Mac]

Otta Wrote:

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> This is the best thing I've seen written on it.

>

> https://thesecretbarrister.com/2016/10/14/10-myths

> -busted-about-the-ched-evans-case/

The best thing written about the case is the case itself.

[Jeremy]

I think it's the possibly right decision too, from what I've heard. He acted like an idiot and an absolute bastard, but if she was able to not only consent, but tell him what she wanted him to do, then I think it was reasonable for him to assume it was consensual sex.

[alice]

has she got any claim against the police for putting this case forward.

[Mick Mac]

Good point. Don't know.

[Otta]

Mick Mac Wrote:

-------------------------------------------------------

> Otta Wrote:

> --------------------------------------------------

> -----

> > This is the best thing I've seen written on it.

> >

> >

> https://thesecretbarrister.com/2016/10/14/10-myths

>

> > -busted-about-the-ched-evans-case/

>

> The best thing written about the case is the case

> itself.

Erm, except the case wasn't written about the case.