Ched Evans – Appeal refused

Introduction

Ched Evan’s application to appeal against his conviction and sentence of 5 years for rape was refused on 6th November 2012. Crimeline has the transcript of the judgment.

The facts of the case are well know, but a good overview from the BBC website is here. We have covered the sentences for the ‘tweeters’ here and a guide to how appeals to the Court of Appeal work here.

It is important to note that this was a renewed application (rather than a full appeal) which means that a High Court Judge has already stated that there are no grounds of appeal. The Judges (The Lord Chief Justice, Mr Justice Mitting and Mr Justice Griffith Williams) were not re-evaluating the case afresh, but rather seeing that the conviction was ‘safe’ and the sentence was in the appropriate range.

 

Grounds of Appeal

Conviction – The grounds of

(1) The verdict of guilty for Mr Evans was inconsistent with the acquittal of Mr McDonald.

(2) The Summing Up was flawed because the Judge failed to properly tell the jury that:

  • The victim could still consent even if she was drunk (often summarised by saying ‘a drunken consent is still consent’), and,
  • The victim could still have been consenting even if, because of alcohol, she had no recollection of the evening.

(3) There was ‘fresh evidence’, evidence that had not been available to go before the jury, and had the jury heard this then they may not have come to the same conclusion (that Mr Evans was guilty). This evidence fell into two parts:

  • Witnesses who confirmed that the victim had previously had evening where she had drunk so much that she could not remember what had happened, and,
  • A pharmacologist who stated that whilst the victim may have had amnesia (inducced by alcohol) this did not mean that she lacked the capacity to consent.

(4) In any event, there was a ‘lurking doubt’ as to the safety of the conviction.

 

Sentence – The sentence of 5 years was ‘manifestly excessive’. It is not clear what the exact grounds were, but it appears that it was on the basis that because there was no violence or force and the victim had no real recollection of the incident, a sentence of 4 years should have been passed.

 

The Court’s Judgment

The Court dismissed both applications.

Conviction – Taking the grounds in turn :

(1) ‘Inconsistent verdicts’ is a notoriously difficult ground of appeal to succeed on (see here for a case that sets out the principles). In this case, the Court concluded that it was perfectly possible for the jury to have thought it possible that Mr McDonald reasonably believed that the victim was consenting to sex with him, but concluding that they were sure that Mr Evans did not have that belief when he had sex with her.

(2) The jury were given a proper direction. This is a complicated area (see the case of Bree for a discussion), but the Court decided that the Judge’s direction to the jury was correct.

(3) The evidence relating to the victim being drunk on other occasions was irrelevant and not, in the end, relied on by Mr Evans’ lawyers. The evidence from the pharmacologist was found by the Court to not be ‘admissible’. It was noted that what the pharmacologist was saying was contrary to what Mr Evans had been saying in the Crown Court and was, in any way, not relevant and would not have made any difference to the jury’s verdict.

(4) The ‘lurking doubt’ ground is based on the case of Cooper from 1969. It does not assert any particular legal error but asks the Court to consider, in light of all the evidence, that there is ‘lurking doubt’, a general feeling of unease, about the conviction. This is rarely successful, and was not here. The reason for this is that the Court of Appeal traditionally respect the verdict of a jury and will not go behind it unless there is a legal error.

Sentence – The starting point for this category of rape is 5 years. The Court found that there were no reasons to interfere with the sentence of 5 years passed by the trial Judge, especially as the Judge had heard the whole of the evidence.

 

Is their any penalty for losing the appeal?

In short, no. There is no power to increase the sentence for bringing an appeal that does not succeed. Whilst it is likely that Mr Evans was paying privately and could afford to have paid the costs of the hearing, on an application for permission to appeal, the Prosecution would not normally be present to be paid their costs.

 

What happens now? Can there be another appeal?

No. That is the end of the line. There can be no appeal to the Supreme Court as the Court of Appeal did not give a judgment (they refused permission to appeal). In any event, even had permission been granted, the Supreme Court would only consider hearing a case that raised an important point of law, and this appears to be a case of a factual dispute that does not deal with any legal issues.

The only possibility for a further appeal is if there is ‘fresh evidence’ and then Mr Evans can apply to the Criminal Cases Review Commission to review the conviction. It is difficult to see what sort of fresh evidence could be found. There is no realistic possibility of further challenging the sentence of 5 years (which means that he will be released in about two years from now).

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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

61 thoughts on “Ched Evans – Appeal refused

  1. Andrew

    If one thing is more obviously unjust than another it is that the acquitted co-Defendant was named. He may be no angel – but he was acquitted. We will have to re-visit the question of anonymity for unconvicted defendants – and not just in rape cases – but in the meantime, I cannot see why the Court of Appeal should not make it their practice not to use the name of anyone in the position of this man – acquitted at trial but mentioned in the judgment – and indeed to require counsel not to do so either.

    Reply
    1. sisterhooduk

      Why is it unjust. Surely a victim put on trial, even though she is not supposed to be on trial, without her own defence team – ‘s, barristers, solicitors in her corner is equally, if not more so, unjust, the CPS represents the Crown not the victim. If victims were given their own defence team, even though they are not on trial, wanna watch those convictions rates soar rapists crumbling under directed and powerful cross examination.

      Reply
      1. Dan Bunting Post author

        That may have been true 20-30 years ago, but to prosecute a rape nowadays, you need specialised training and are by and large dedicated and thorough.

        What would happen differently in a trial if the complainant had a separate lawyer (leaving aside how that would work practically)?

  2. Dan Bunting Post author

    It’s a difficult area with strong arguments on both sides. At the moment I guess that the view of the Court of Appeal is that the presumption of innocence means that once someone is acquitted they are innocent and there’s no harm in naming them.

    I guess with this case it was so high profile that there was no point in not naming the co-Defendant as it had been all over the papers? But in principle I agree, it’s unnecessary to name him.

    Would you have blanket anonymity for defendants in sex cases as well as complainants?

    Reply
  3. sisterhooduk

    Acquitted does not mean not guilty it means not proven there is a difference. Shall we look now accused or rape and then acquitted. Ian Huntley is one remember him. Yes he was acquitted of rape and he there were ten separate complaints made to the police about his. Innocent?. Stand up now and defend him. Kirk Reid was acquitted of sexual assault he went on to assault 71 other women before finally being caught and found guilty. These rapist lie and often they get away with it.

    Reply
  4. Dan Bunting Post author

    I understand the factual difference. But by law a court cannot return a verdict of ‘innocent’, so when a defendant is found not guilty there is no way of knowing what the jury made of it. I think as a matter of public policy it is right to draw a line after a trial and not go into how innocent someone is?

    Reply
  5. sisterhooduk

    Let’s face it more rapists walk free then there are false accusation, “I thought she/he consented” is as good as a get out of jail free card. How many accused of rape actually plead guilty first time even with the smoking gun they seek to blame everyone they can think of: the police, the CPS, the courts and course the victim it has to be her fault (or his) for being there and having an orifice available for raping. I think the guilty who got away with is should squirm such as the taxi driver who confessed to murder and got away with it on a technicality. What happens when someone’s is guilty but declared innocent. No amount of semantics of playing with words wrapped up cosily detracts from this and it happens all the time with rapists and sex offenders. http://www.independent.co.uk/news/uk/crime/taxi-driver-christopher-halliwell-is-jailed-for-25-years-for-murdering-sian-ocallaghan-but-will-escape-justice-over-second-murder-because-of-police-blunder-8218531.html

    Reply
    1. Dan Bunting Post author

      The Christopher Halliwell case is a very unusual one. He didn’t get away with murder on a technicality – he wasn’t tried for murder because there was no admissible evidence that he had committed the murder.

      I understand that people can get upset with that case, but the reason there was no trial is due to the outrageous behaviour of the police. The police have great powers and it is very important that they are not abused.

      In any event, given that Mr Halliwell will be spending at least the next 25 years in prison (and in reality, much longer), it was somewhat of a Pyrrhic victory.

      Reply
  6. Dan Bunting Post author

    There are very, very, few false allegations of rape and those that do happen get a disproportionate amount of publicity.

    In relation to your comments, where’s the evidence for that? I haven’t got it to hand, but there are plenty of guilty pleas to rape. Also, the conviction rape for rate is not as low as the media would have you believe. There’s some commentary here – http://beneaththewig.com/the-58-campaign

    The standard of proof we have – ‘beyond a reasonable doubt’/’satisfied so that you are sure’ means that it is inevitable that there will be many people that the jury think are probably guilty who are acquitted. That is part of the price we pay for living in a free society.

    Reply
    1. sisterhooduk

      Which means they are freed, as in the case of Reid, to continue their sexual offences until they are finally jailed. This injustice is drowned out against the protestations of the “innocent” that they were falsely accused. And that is not to say that some people aren’t but my point was and without evidence by and large they are guilty but it cannot be proved beyond reasonable doubt. And just returning to your earlier point about Mr Halliwell the fact he is serving 25 years in jail offers no comfort to the family of the woman he confessed to killing but was never tried for and I can still see and hear her mother broken, hurt, confused standing and the steps of the court, the gateway to justice, pleading for justice for her daughter.

      Reply
      1. Dan Bunting Post author

        If there’s not evidence that they are guilty, then (unfortunately if they are guilty) there’s not much we can do?

        With Mr Halliwell, it was heartbreaking. By rights, the police should be ashamed of themselves for the way their officer behaved and denied justice for that family. They have not apologised at all (I think)?

  7. Andrew

    I don’t see why any defendant should be named unless and until there is a conviction – in rape or in anything else. The French don’t do it – their press refer to a defendant as M. A or Mme B as the case may be.

    As for rape: it is always going to be difficult to prove beyond reasonable doubt; that is the nature of the offence. And rape defendants are entitled to the same presumption of innocence as all other defendants.

    Reply
    1. sisterhooduk

      Wny shouldn’t they be named. In most other cases the defendant is named why shouldn’t those accused of rape and sexual offences be named. Of course he didn’t do it. Rapists and sexual offenders are all innocent. Remember the fictional film The Shawshank Redemption there’s a great quote which rings true… “I’m Red, heck I’m the only guilty man in Shawshank.”

      Reply
      1. Dan Bunting Post author

        As I see it, the argument against naming is that the public at large will think ‘there’s no smoke without fire’ and an acquittal, even if it is because the defendant is factual innocent, and therefore it is unfair to drag someone’s name through the mud until a jury of their peers have concluded that they are sure that he is guilty?

    2. Dan Bunting Post author

      I find this a difficult question and not sure what I think. If there is to be anonymity for some defendants, then I think that it should be for all (sexual offences and otherwise). I can see good arguments on both sides – for and against anonymity.

      Reply
  8. sisterhooduk

    I have to confess to being a no smoke without fire person, but, I do recognise that sometimes there is no fire and it is all just smoke but more often it’s the reverse and those clamouring loudly to be anonymous do have something to hide. As I mentioned earlier some men (and it is men) who have been acquitted have subsquently gone on to become prolific sex offenders and or murderers. Of course they want to be anonymous.

    Reply
    1. Dan Bunting Post author

      I would imagine that 99.999999999% of sex offenders are men! Anonymity is a complicated issue and the problem with a blanket rule is that it will always lead to odd results? I just know that if I, or a member of my family, were charged with something that they didn’t do, I would prefer the anonymity…

      Reply
      1. sisterhooduk

        My point, which I’m sure you understood, is it is always someone else’s problem or issue however suddenly when anonymity for the accused directly affects you it’s not such an easy standpoint to argue.

      2. Dan Bunting Post author

        Let us know what you think of the link – it’s an interesting question.

        I understand exactly what you are saying, which is why I would only comment on a case that doesn’t effect me : if it did touch on my life, I wouldn’t be able to have any level of objectivity.

  9. sisterhooduk

    A hypothetical for you how would you feel if you learnt that a school teacher at the school where a member of your family, who is aged under 16 is a pupil, has had multiple accusations of improper conduct/sexual assault of children aged 15+. He has never been convicted and therefore has been allowed to remain anonymous would you be comfortable with this person having unsupervised access to your family member who is a child under the age of 16. You don’t know any of this of course because he is anonymous.

    Suppose as a hypothetical that somehow you’d found out about it what would your absolute gut instinct be in this instance. If you don’t like the School Teacher analogy substitute it for Paediatrician.

    Reply
  10. Andrew

    Guts are for digesting: brains are for thinking. Confusing the two roles makes a mess and is best left to those who read and write the Daily Hate Mail.

    ” Rapists and sexual offenders are all innocent.”. You meant that sarcastically, but in the eyes of the law while they are unconvicted it is true and the law should act accordingly.

    Reply
    1. sisterhooduk

      Guts are for digestion actually, not eating, if you choosing to deliberately misinterpret “gut instinct” I still so no reason why when are are so few false accusations, or in any case, why men accused of rape and sexual offences should have their anonmity protected. Why are they more special than any other defendant. Clayton MacDonald was not falsely accused he was however acquitted after (four hours and 52 minutes) deliberation by the jury.

      Reply
      1. Dan Bunting Post author

        The argument would be that people would think ‘no smoke without fire’ and not see an acquittal as a clean bill of health? But there should be no special rules for rape defendants.

  11. Andrew

    Sisterhooduk, you are even more pedantic than I am, but guts are in any event not for thinking, and yes, I think you are gut-reacting. We all do it. I do it when I read about cases involving harm (by either gender) to small children. But if I was judge or juror in such a case it would be my duty to switch my guts off and my brains on and give a true verdict according to the evidence – that verdict being Guilty only if I was not in any reasonable doubt.

    I think I have said that I believe all defendants should be anonymous unless convicted – not just rape defendants, whom, therefore, I don’t regard as more special than other defendants.

    As for the co-defendant in the Evans case, only he and the complainant know whether the accusation was false. You don’t. I don’t. What we know is that he was acquitted, and I see no reason why his name should be given further publicity.

    In this high-profile case, to be sure, it probably does not matter. But would you agree with me that in the ordinary run of cases which do not involve well-known people, an acquitted co-defendant (whatever he was acquitted of) should not be named by the Court of Appeal in a convicted co-defendant’s appeal?

    You mention the time they took: what point are you making? If both men had been acquitted in the time it took the lawyers to down a coffee (what we used to call a “cigarette acquittal” in earlier days when a jury came back just as the lawyers finished a smoke, because one of the jury had been doing the same; showing my age there) then it might look like an act of contempt for the complainant – but it would still be a valid acquittal. As it is, they obviously thought about it. Not sure I would have been satisfied beyond reasonable doubt in his case, whereas I think I would in that of Evans.

    Reply
    1. Dan Bunting Post author

      I think that the internet makes the argument for anonymity stronger in that if someone is acquitted, the facts of the allegation remain easily accessible in cyber space forever. 20 years ago you would have to wade through papers in the local library to find anything. I suppose that the internet also makes it pretty hard for an anonymity order to be effective as well however…

      Reply
  12. Andrew

    The run of the mill non-celebrity case will die if it is not given publicity at the time – or afterwards if there is an acquittal. Yes, there may be exceptions, but what of it? In a high-publicity rape case which attracts attention abroad a foreign newspaper may publish the complainant’s name. In fact that happened in the Evans case – and I am not going to name the newspaper! Whether it reached the paper’s online edition I have no idea. In practice if the print edition were on sale here – and there are news-stands in central London where you can find some very surprising foreign papers – nothing would be done – certainly not until it was too late and copies were in the hands of the public.

    In fact there are libraries where copies of foreign newspapers are stored and made available, and there is nobody, as far as I know, whose job description includes going through them to make sure they are not disclosing details of trials in the UK which the British press are forbidden to print.

    Reply
  13. sisterhooduk

    Yes but in Scotland rape is allegedly classed, by some, merely as bad sexual etiquette.

    Reply
  14. Andrew

    Which just goes to show that in every land and clime there are some total prats. When they speak of rape like that they will probably be male prats; female prats utter their prattery on other subjects.

    Doesn’t change my point which is that no anonymity law can ever be perfectly and completely effective.

    Reply
    1. Dan Bunting Post author

      I’m not sure on this point what the public think (or whether there is a consistent view)? Has there been any research as far as anyone knows?

      Reply
  15. sisterhooduk

    The public think that defendants who want anonymity generally have something to hide why else? First hand research for you right here and I won’t even charge you for it.

    Reply
  16. Andrew

    The public also want hanging and flogging.

    In a sense they are right. People who have been accused but not tried and convicted have something to hide – the fact that their good name is under attack – and every right to hide it.

    Will someone say why all defendants – not just rape defendants – should not have anonymity?

    Reply
  17. sisterhooduk

    The public should know the truth about crime and the nature of defendants. In 1959 the social scientist and policy activist Barbara Wootton looked at the crime statistics and remarked that “if men behaved like women, the courts would be idle and the prisons empty”. Half a century later the British Crime Survey and police crime figures bear her out. In 2009-10, men were perpetrators in 91% of all violent incidents in England and Wales. The figures vary by type of incident: 81% for domestic violence, 86% for assault, 94% for wounding, 96% for mugging, 98% for robbery. MoJ figures for 2009 show men to be responsible for 98%, 92% and 89% of sexual offences, drug offences and criminal damage respectively. Of child sex offenders, 99% are male. The highest percentages of female offences concern fraud and forgery (30%), and theft and handling stolen goods (21% female).

    http://www.guardian.co.uk/commentisfree/2011/nov/25/dangerous-masculinty-everyone-risk

    Reply
  18. Andrew

    What has any of that to do with whether the unconvicted individual in the dock should be “named and shamed” while he or even she remains unconvicted?

    Reply
  19. sisterhooduk

    Are you shocked by these stats, appalled, as I was, men should come with a Government Health Warning!

    To address your question what on earth has it to do with whether an individual is named and shamed, as you term it, in the dock is a good question. Shall we look at the gender of those commiting these most terribles crimes, then let’s look at the gender of those campaigning vociferiously for anonymity for the accused. Without research I am confident we shall find it’s by and large men, looking out for men and there own interests. Rather than speaking out, condemning and tackling this feral behaviour, they seek to provide a cloak for it to hide behind and clamour for the cloak to be legalised. And when women start to achieve anywhere near these stats for violent crime, sexual offences, domestic violence then you can bang on about how you want anonymity irrespective of gender it is irrelevant as we can see. There is only one gender, the male one, who has cornered the crime market. There should be no hiding place.

    Reply
    1. John

      I was appaled at those stats, although i presume for different reasons. See, I looked deeper into the issues than numbers in prison. The 81% figure for domestic violence was particularly appalling- see, figures found here (http://www.guardian.co.uk/society/2010/sep/05/men-victims-domestic-violence) show that two in every five cases involves a man beaten by his wife/girlfriend. Why, therefore, are less than one in five people sentenced female?

      With such discrepencies in domestic violence it wouldn’t be that much of a stretch to assume a similar story for other crimes. The headline figures for prison population truly are shocking, but digging a little deeper shows the problem appears to lie with a system that appears favourable to women, and not in the “all men are bastards” mantra repeated by generations of feminists.

      Reply
      1. sisterhooduk

        Yes I’ve seen this before confront men with the FACTS regarding their behaviour of them and their fellow men with regard to violent crime, sexual offences, rape, paedophilia, dangerous driving present the evidence in black and white and suddenly they bring up the “what about teh menz” and some mansplaining. Eventually they throw in an unrelated comment about feminists because somehow feminists are to blame for what men do rather than men being responsible for what they do. Then play the victim “all men are bastards” (Yes most of them). A nice smokescreen to avoid taking responsibility place the blame fairly and squarely where it lays with your feral brothers who cannot conduct themselves like civilised members of a civilised society. And again when women achieve these figures level any accusation you want until then the blame lies exactly where it uncomfortably should with men.

  20. Andrew

    So for you accused = guilty?

    Shall we even bother with a trial?

    How about a certificate from a police officer not below the rank of Inspector (female in the case of a rape defendant) that the defendant is guilty as charged?

    And what do you think of the lawyers who defend them? (In the case of rape defendants usually women, I might say, there being a perception that a woman can cross-examine the complainant harder than a man.) Should that even be allowed?

    I speak out against, condemn, and so far as I am in a position to tackle the feral behaviour. I just like to think there should be a trial first . . . call that an old-fashioned male attitude if you like, I call it justice.

    Reply
  21. Andrew

    As for men looking out for men: we are all humans, and I think it’s humans looking out for humans. You of course may consider me an Untermensch.

    Reply
  22. sisterhooduk

    Good use of the smokecreen, red herring, side tracking and straw manning I must have said something right. How do violent men look the 91% that get caught or the sex offenders the 97% who did it. I don’t know and nor does anyone else all we know, as human beings, is their gender. Blame your fellow man for that it is about what men did.

    Reply
  23. sisterhooduk

    On the contrary I think you’ll find that you failed to answer any of mine actually.

    Reply
  24. Andrew

    I have said that I have no time and no excuses for violent criminals and I am well aware that nearly all of them are male – and also that nearly all men are not violent criminals.

    I say only that a man is not to be named and shamed as a criminal unless and until he is convicted.

    I think that answers your questions – now how about mine from 9.27 p.m. yesterday? And can I add one more: do you favour anonymity for a female defendant charged with a serious but non-violent offence? Or even, very rarely, with a violent offence?

    The trouble is that you seem to take the view that any man in the dock is guilty of being a man and that that is sufficient reason to name and shame him, and if he didn’t do what he’s charged with, what the hell, he’s a man and therefore guilty of something nasty!

    Reply
  25. sisterhooduk

    Thank you for your response.

    So for you accused = guilty?
    No I generally do not believe that accused means guilty but it means that the CPS who look at these matters believes there is a case to answer. The only time I am usually convinced guilt before trial is in rape cases then I tend to believe that most accused are guilty and most get away with is or at least 42% do but really it is more than that because most rapes go unreported.

    Shall we even bother with a trial?
    A trial is important because of the mitigating and aggravating factors apart from rape cases I’m happy to skip the trial and go straight to public flogging you mentioned earlier.

    How about a certificate from a police officer not below the rank of Inspector (female in the case of a rape defendant) that the defendant is guilty as charged?
    I have no problem with the police investigation of rape cases and their not making assumptions of guilt otherwise, like me, they will form the view of their experience of dealing with rapists and sex offenders that most are guilty and too many walk and it is better of have it held up to scrutiny. However getting rid of that “if the defendant reasonably believes the victim her/him to be consenting…” would go some way to proving my point about rapist I mean who gives a sh*t what they thought keep it zipped. Of course if a rapist wants to get his end away, aka, he’s gonna say that isn’t he.

    And what do you think of the lawyers who defend them? (In the case of rape defendants usually women, I might say, there being a perception that a woman can cross-examine the complainant harder than a man.) Should that even be allowed?
    What do I think of lawyers who defend them. I’ve worked with lawyers need I say more! Okay I will. Everyone should be entitled to be represented when placed on trial. Rape victims are put on trial and they aren’t represented. If you think I’m incorrect look at how the Ched Evans mob went after his victim because he turns up at a hotel room where she is uninvited, unaccounted, has a mobile phone film crew on standby (what for if not to capture his next act), leaves by a fire exit (no fire) and what do we find it’s all entirely the fault of the victim.

    I speak out against, condemn, and so far as I am in a position to tackle the feral behaviour. I just like to think there should be a trial first . . . call that an old-fashioned male attitude if you like, I call it justice.
    Possibly but you did it grudgingly because I called you on it there is resentment in your tone like men should not be critised for what they do.
    Your final point do I favour anonymity for female defendants. No I don’t. I do not favour anonymity for any accused/defendant.
    I agree my viewpoint views men as guilty until proved innocent even then I’m scepitcal see earlier point about Ian Huntley, Kirk Reid do you blame me?
    Reply ↓

    Reply
    1. Andrew

      You got me wrong – I absolutely do not condemn male violence “grudgingly” (and where is “possibly” coming from?) but most of us on this site hardly need to say that we do.

      “Rape victims are put on trial” – in a sense they are but if they are “convicted” ( = D is acquitted) they are not going to be banged up for a long time to be the victims of self-righteous thieves who think that at least they aren’t as bad as they are. As for Evans – The jury did not think it was her fault, at least as regards him; they were in reasonable doubt (or they may have thought she was telling a pack of lies, but in that case they would probably have acquitted Evans too) about the other defendant.

      You seem to hate half your species and that’s not a happy place to be. Not much I can do about it except to assure you that I am not a rapist or a man of violence and I have no time for those that are.

      And finally – what about the French solution? Their press there call defendants M. A or (much less often) Mme B. So the individual has anonymity but the massively greater number of male over female defendants is not hidden? That seems to meet your point.

      Reply
  26. sisterhooduk

    There are seldom any victimless crimes if you you discovered Mr and very occasionally (Ms) Anonymous who you knew or was perhaps your neighbour had countless victims but no-one told you or he’d never been charged so and the way you found out was whey you, or your family or loved ones became a victim of him (or her). It is not enough to say be objective for there will always be a victim someone else’s family or child harmed by anonymity. Someone must speak up for them.

    I had to make a choice whether to employ someone who had no criminal conviction, but who had been charged and had been facing trial for allegedly breaking his two of his wife’s fingers on one occasion and her cheekbone on another by throwing something at it. Shortly before trial the victim withdrew her complaint (or refused to co-operate). He never was tried.

    I am appalled that this hybrid exists courtesy CRB I was privvy to this information but had never been found guilty. There was my innocent unless proven guilty voice and the what the hell someone broke her fingers and ribs and they think it was him!

    My dilemma was that this person was coming in to work with children in a very senior position in an NHS setting he might be the first person to detect child abuse as well as domestic abuse and yet here I was with a warning about him lodged by his local constabulary, unproven allegations, and therefore I should have disregarded them. What would you have done?

    Do you think it was right that such a thing was (and probably still is) permissible?

    You say I hate half my species, who says hating men is not a happy place to be I’m doing somersaults and anyway you’re wrong I don’t hate men I’m woman who isn’t afraid to have an opinion that’s all some may interpret it that way.

    Reply
  27. sisterhooduk

    You focus on poor old Reg Traviss – Yet this case http://www.bbc.co.uk/news/uk-20705707 passed without any comment! To summarise it is a case where the rapist was acquitted of raping a 15 year old girl due to a technicality or incompetence take your pick and the judge branded his acquittal a disgrace. The rapist, well, he’s out there unnamed walking amongst us enjoying his anonymity. He could be a teacher, doctor, lawyer, minicab driver, he definitely has neighbours. Okay if you’re a bloke I guess as long as you don’t have daughters.

    What about this one which also passed without comment where the rape victims told the police they had the wrong man and he was cleared http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-20715577

    Reply
    1. Dan Bunting Post author

      Sorry, you are quite right, I should have flagged that up too! It’s an interesting area of the law, I’ve written about it (in a personal capacity) before.

      In terms of the case you’ve linked to, there’s no reason on the face of it why the defendant could not have been named. As I say, I’m not sure what I think about anonymity in sex cases, but as he’s been acquitted, I do maintain that he is not a ‘rapist’. I think casting doubt on acquittals is the best reason for anonymity however.

      Reply
  28. sisterhooduk

    With all due respect you speak from the position of someone who is unlikely ever to be raped or sexually assaulted. It’s okay to speak from a safe position and therefore you believe you also objectively. If you obtain an objective stance in the face of the reality this is rape and sexual assault you actually siding with the oppressor over the oppresssed and that’s not a neutral stance.

    If you had lived the fear that is the experience of many women when doing what you would probably class as innocuous activitiies walking the street, parking their cars, even going to school or being at school, on public transport anything which places in you in contact with rapists and or the sexual predator you would not view it in this way. And until you have that empathy (or experience) to know the fear that these people generate – that they can penetrate you, violate you, touch you sexually against your will you never will. You have no idea of the sense of fear it induces, and not only that, the fact that having a pulse and a vagina means, in the eyes of some, that it is your fault.

    I cast doubt on acquittals in these cases, such as the case of Rebecca, because they deserve to have doubt cast on them. Yes, there is no perfect system, acquittal does not equal innocent and no amount of shoe horning will make it that way, despite how the rape apologists like to suggest it is (not saying you are an apologist). I know we’ve discussed this before I find this argument about anonymity appers to trivialise how it is to be raped, sexually assaulted and abused and to watch the rapist or attack walk away scot free as they do and too frequently.

    Reply
    1. Andrew

      What do you see as the role of a jury in a rape trial? To ratify the decision of the police and the CPS or to reach a verdict on the evidence presented to them, that being verdict being Guilty if they are satisfied beyond reasonable doubt and Not Guilty if they are not?

      Reply
  29. sisterhooduk

    I may have mentioned it before but if not I’ll say it again. I have no doubt that all rapists and sexual offenders the entire world over, including those in jail are innocent. I have no doubt that those who are actually found guilty are there because it is the fault of their victim for… well you pick a reason.

    Juries, well the jury works on the evidence presented. Evidence that is lost or inadmissible is not presented to them.

    Would you like Rebecca’s acquitted rapist to date your mother, sister, daughter how about to teach her, nurse her, operate on her, be alone with her in any capacity. He’s acquitted after all so she, and you, have nothing to worry about. How about if he’s living under your roof in the guise of a friend. When you cite objectivity in cases like this you do not adopt a neutral stance.

    And one last thing ever been raped? Ever been been raped as child or sexually assaulted? Any idea WHATSOVER, what it feels like. These people walk amongst us free and anonymous.

    Reply
  30. Andrew

    Indeed. And a man who is convicted of rape and has served his time will also walk free among us; and though he is known to NOMS and the police he is, in principle, free to go where other free people go – streets and parks and shopping centres.

    I don’t for a moment believe that a higher proportion of convicted rapists are in fact innocent and the victims of a miscarriage of justice than of any other sort of convicted person, and I certainly want them watched after release so far as realistically possible – but like I say that may not be very far.

    Nor, for the record, do I believe that rape is ever the fault of the victim. If I ahve given that impression I am sorry; but I don’t think I have. Rape is the fault of the rapist; in fact all crime is the fault of the criminal, and of nobody else.

    It’s just that I believe in due process.

    Reply
  31. Andrew

    Sorry, hit ENTER too soon.

    No, acquittal is not proof of innocence. But just what do you expect any public authority to do if a man is tried and acquitted?

    If he is a teacher, a doctor, a lawyer, his professional body can change that on the balance of probabilities – not saying that they should – but the ordinary Joe Blow with no such qualification is not affected by that.

    So while acquittal is not proof of innocence it generally has the same effect.

    Reply
  32. Pingback: Have Your Say – Sexual Offences Sentencing | UK Criminal Law Blog

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