Ched Evans – Appeal to be heard on 22nd March 2016

Ched Evans – Appeal to be heard on 22nd March 2016

54
SHARE

*Update – 22nd March *

We were hoping to able to give a summary, and maybe some commentary, of the first day of the appeal, but we understand that there have been reporting restrictions imposed that prevent reporting until the appeal has concluded. 

Introduction

On 22nd March 2016 the Court of Appeal will hear the appeal of Ched Evans, the Sheffield United and Wales footballer who was convicted of rape on 20th April 2012 and sentenced to 5 years in prison.

By way of background, Mr Evans tried to appeal his conviction (there is a fact sheet here as to how appeals are dealt with). The Single Judge refused permission but, as was his right, Mr Evans renewed his application before the Full Court, who also refused it.

An indication of how high profile the case is can be seen by the fact that the judgment of the Full Court was published – this is very rare.

That would normally be the end of things, but Mr Evans made an application to the Criminal Cases Review Commission (as was, again, his right).

What will happen?

We are told that the appeal is listed to last for two days. This is very long – most appeals last a couple of hours at most. A day long appeal is very unusual, more than that is exceptional.

It seems that Mr Evans (and possibly the prosecution) will be calling a variety of witnesses to give ‘fresh evidence’. Details are sparse, but if some or all of these are called then this may explain the length of time it is listed.

What are the grounds of appeal?

That we don’t know, as neither the Grounds of the Application to the CCRC, nor the CCRC Referral itself, has been published.

Despite having a website to proclaim his innocence, Mr Evans hasn’t published more details (anonymised of course) of the grounds of the application.

But from the news report above, it seems that the grounds will be  that :

  1. the police did not follow correct procedures
  2. the judge misdirected jurors
  3. vital CCTV footage was missing
  4. further information about the complainant, including “significant inconsistencies” about her lifestyle

What are the chances of success?

Difficult to say at this stage. It is very hard to win an appeal against conviction, and so the odds are stacked against him. But then again, the CCRC did refer the case, which does mean that there is some merit in it.

As an overview :

In relation to (1), it is reported “that when he and soccer pal Clayton McDonald were arrested they were driven away in the same police car, were not read their rights and had a discussion which compromised their defence“. It is hard to see what this could be, but no doubt we will find out.

(2) is the most common grounds of appeal, and the one that is most likely to succeed generally.

However, the case was considered in 2012 by three very senior Judges, including the (then) Lord Chief Justice, Lord Judge. Not only that, but Mr Evans was represented by a QC and a junior.

So although it is possible there was a misdirection that was missed then, it does seem a bit unlikely.

As any advocate can tell you, (3) is a very hard argument to win. The law is pretty well set out in R v Feltham Magistrates’ Court, ex part Ebrahim [2001] EWHC (Admin) 130. It is hard to imagine what the CCTV that was missing was, but again we will have to wait and see.

Lastly, with (4), it will depend on what it is. It’s important to note that information about the complainant’s lifestyle is inadmissible, not least because it is irrelevant.

But it may be that there is information affecting her credibility, which would be relevant of course.

At this stage, again, there’s not much that we can say without knowing more details of what the proposed evidence is.

What happens if he wins?

That will be up to the CPS and the Court. In the sense that the CPS can ask the Court of Appeal to order a re-trial, which they may do.

Although he has served his sentence (effectively, although of course he’s technically on licence), given the high profile nature of the case, I would imagine that a re-trial would be ordered.

Either way, it is important to remember that the complainant has life long anonymity, and it is a criminal offence to publish her name.

What if he loses, can he be sent back to prison?

No. He has served his prison sentence (see above) and although there are cases where a Court can order someone to spend longer in prison if they pursue a hopeless case, this is not one of them. The fact that the CCRC have referred the case protects him from that.

He will probably be ordered to pay some of the costs incurred by the prosecution in defending the appeal however.

In theory, he can apply again to the CCRC, and in certain cases they have sent a case back to the Court of Appeal more than once (see that of Tony Stock as an extreme example), but that is incredibly rare.

*Comments have been disabled pending the outcome of the appeal*

SHARE
Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

54 COMMENTS

  1. There is no way this is going to be overturned. Would send the wrong kind of message.

    • I agree that it’s unlikely to be overturned, but not sure what you mean be sending ‘the wrong kind of message’? If the conviction is unsafe, it’s unsafe – the Court wouldn’t be concerned with the message the outcome of the appeal sends.

      • Are you saying it is unlikely to be overturned purely on a statistical basis?( since we don’t know what is going to be presented.) Rgardless of the merits of this case , anyone wrongly convicted who gets to this stage should be worried seems to be what your saying.

        • It’s not based on a statistical analysis, although it is fair to say that once someone is convicted, it is hard to get that conviction overturned.

          • I find it slightly disturbing that chances of overturning are slim purely based on process rather than evidence . Imagine the kafkaesque nightmare if wrongly convicted.

  2. Am I right in thinking the appeal will be televised or is it only selected cases in the CA?

    • I imagine that it won’t be televised as 1) People are giving evidence and they are only supposed to televise the legal argument – not fair on the witnesses, and 2) As with all sex offences, the victim is entitled to lifelong anonymity, and there would be too much of a risk that her name would be broadcast – the prohibition is on naming her in the media, not in Court.

      • Hi Dan,

        Matt Nicholls here. I’m the journalist/producer who runs the camera setup at the Court of Appeal for the broadcasters.

        We are filming the Ched Evans appeal, but, as with all cases that involve a conviction challenge, we can’t broadcast the footage until the appeal is dismissed (or, if the appeal is allowed, the court doesn’t order a retrial). This is a restriction that applies solely to court footage and is set out in the legislation that allowed cameras into the Court of Appeal.

        You’re right to say that we aren’t allowed to film witnesses and obviously we’re bound by the same restrictions as everyone else as regards identifying the complainant, but all this can be edited out “on the fly”, so the fact there are reporting restrictions isn’t in itself a bar to TV coverage.

        Live witnesses in the Court of Appeal are obviously pretty rare but we routinely cover cases where material that would identify complainants in sexual offence cases or juveniles has to be removed. It’s how I earn my money!

        Anyway, in short: hopefully you’ll see some footage from the Evans appeal at some point.

        • Hi Matt

          Thanks very much for posting this – very helpful. Interesting to find out a bit more about it. None of the appeals that I have been involved with have been filmed (fortunately!). I have had one where the Sexual Offences Act provisions applied, and I thought that it had been said that it wouldn’t be filmed for that reason.

          I look forward to seeing some of tomorrow’s proceedings! I would imagine that the judgment will be reserved, so it will probably be a little while before we see it.

          Thanks again for the information.

        • He was convicted so I think it is appropriate to use ‘victim’. I normally use complainant however, which covers all.

  3. It will be interesting to find out what this ‘new evidence’ consists of. I would appreciate a link to any filmed footage please.

  4. I have no idea if he’s guilty or not but I don’t understand how he could be found guilty while his “pal” was acquitted. They both had sex with the same woman while she was in the same state of inebriation. Either they’re both guilty or neither of them are. Bizarre and illogical decision by the jury, and rather concerning that two sets of appeal judges saw nothing wrong with it.

    • Of course no-one knows the minds of the jury – but here is a likely explanation – also hinted at by appeal court judge:

      Different circumstances

      Clayton met and interacted with the victim for some time, before returning to the hotel with her. Even though at the time penetration took place, she was too drunk to consent (proven by the prosecution) it is likely that the jury felt this previous interaction gave them doubt about whether Claytons belief in consent* was a “reasonable belief”. Note that if they have any doubt about his reasonable belief in consent they must acquit. Evans on the other hand had no such interaction with the victim before hand. He lied to get the key, and let himself into the room where there was a drunk naked woman who’d never met him before. He therefore had no opportunity to either obtain earlier consent (which would be invalidated by the drunkenness in any case), or to have any chance of forming a reasonable belief in that consent. He dived in anyway – which without consent is rape.

      *this doesn’t mean he had consent – only that he had a belief in consent (which must be legally reasonable to be a defence).

      • I think you have provided a very reasonable explanation of how they may have reached their decision (though of course you’re right we can’t know what was in their minds). However, that reasoning is fundamentally illogical. The fact Clayton met her earlier is irrelevant. Previous interaction, even previous consent, is irrelevant – he would need consent *at the time of sex* or reasonable belief of consent AND ability to consent *at the time of sex*. Going back to someone’s hotel room does not equate to giving consent to sex, nor is it considered reasonable to believe that it does.. Previous consent while in a more lucid state is also irrelevant to her ability to consent *at the time*. If she was in an unfit state to consent when he had sex with her then on what possible basis could he have reasonably believed otherwise?

        • I don’t believe for one minute that his belief was reasonable. However, a jury is made up of members of the general population. Half of the general population (by definition) is below average intelligence. It is relatively easy to cause doubt about a technical legal argument. Many will define “reasonable” as what they personally believe is reasonable – and there are far too many people who think if you are drunk, you are asking for it – or any of the other myriad excuses for rape.

          • Oh, agreed, and I do see what you’re saying. I know perverse and illogical decisions are to be expected when you ask 12 random people. It’s not so much the jury that bothers me, but rather the fact that the appeal judges saw nothing wrong with the jury’s perverse logic. Effectively, they agreed with the “she went back to his room = consent” line of thinking, which is disturbing. The fact that different verdicts were even possible given the circumstances is also disturbing, because the only difference between the two men’s actions is that she spoke to Clayton in the street and went back to his room with him. Their actions at the time of the actual crime (or alleged crime, depending on your viewpoint) were identical. So we’re back to an officially sanctioned position of flirting + entering hotel room = reasonable belief of consent.

      • 1. The prosecution did NOT prove the woman was incapable of consenting to sex at the time she had sex with Ched and Clayton, unless everyone reacts in the same way to the same blood-alcohol level. If six friends go an a pub crawl and drink the same drinks at the same times, they will not all fall down at the same time! A critical factor in this is how frequently these buddies play this game. The more often and regularly they go out binge drinking, the more their tolerance of alcohol will normalise at a high level.

        Guess what? The complainant in Ched Evans’ case was, as was her right, a regular clubber and binge drinker. Traces of cocaine were also found in her bloodstream, so presumably she partook of that substance on occasion, too.

        2. ‘Advance consent’ cannot by itself amount to consent or provide a reasonable belief in consent at the time sex takes place. Suppose you invite me to yours for sex. You’ve had a few drinks but seem perfectly capable of knowing what you want. When we get to your place and you hit the bed you pass out. Now you’re unconscious. Can you consent to sex? No you can’t. Can I reasonably believe you still want sex? No I can’t.

        3. On the other hand, I could be the most inconsiderate, Neanderthal plonker the gods ever put on this earth, gatecrash a drunken orgy, and proposition a naked woman who has never seen me before in her life. If she says YES and gives me no reason to believe she is too drunk to be capable of consenting to sex, and we have sex, it is NOT rape.

  5. Here’s a proposition for an enterprising market research company.

    An opinion poll of 1,000 mothers of 15 year old sons
    asking how likely they’d be to permit their son a seven day sleepover
    at Harvey Proctor’s residence.

    An opinion poll of 1,000 mothers of 15 year old daughters
    asking how likely they’d be to permit their daughter a seven day sleepover
    at Ched Evans’s residence.

  6. @ Ian – There was a clip of CCTV footage on Ched Evans’ site of the complainant entering the hotel a few minutes before she had sex with him and Clayton MacDonald. The clip has been removed but I recall it captured her stepping out of a taxi, picking up a pizza in its box, and then sauntering into the hotel and through the lobby, showing no sign of drunkenness. This does not by itself prove she was in a fit state to consent to sex a few minutes later. At least two hours had elapsed since the last time the complainant was known to have taken any alcohol or drugs that night. She appeared to have sobered up and (as you may know) eating the pizza would have helped. But once you have hit a bed you can fall asleep, or into a drowsy state which renders you incapable of consenting to sex, within five minutes. She had sex with MacDonald first. @Caroline: the jury cleared him because he convinced them he believed she had consented. Reasonable belief is a valid defence even if the jury concludes that the complainant did not in fact consent. In this case, the complainant testified that she had no memory of having sex with either man. The jury believed Ched Evans was somewhat less careful and considerate in his efforts to make sure he had obtained consent; but his version of events is that he walked into the hotel room (which after all was HIS room that HE booked) knowing the other two were using it to have sex, and then asked Clayton if he could join in, which they both affirmed. Clayton then left the room. Ched Evans testified further that she moaned and screamed during sex, leaving him in no doubt that she was willing. Independent evidence was insufficient to prove which account of events was the truth. But Ched failed to play his theatrical role in the witness box well enough to convince the jury to believe in his innocence. That’s the long and short of what happened. Independent evidence is still insufficient, in the form of the new CCTV footage – hence reasonable doubt – but even less was available to the jury during the trial.

    • You can drink so much in one session that you can still be intoxicated the following morning even after a night of sleep. Therefore a two hour gap since your last drink does not equal sober as many a die hard drinker and many traffic officers will attest to. Wilful disregard of this in order to shoe horn Ched into the innocent box looks desperate. The hotel receptionist testified that the victim had to steady herself against Clayton as she walked down the corridor to the hotel room. The “CCTV” put on the convicted rapist’s site was actually stop motion which is jerky and disjointed and it is not possible to tell much from it other than that she was conscious.

      More importantly just because Ched Evans felt entitled to have sex with a woman because she was there and having sex with his mate, otherwise why did he go the hotel and let himself in uninvited, does not mean he was entitled to have sex with her. Unless she consented and was in a fit state to give that consent it’s rape.

      • The video is not only stop motion, it is not video. Frame rate is about 1/second which qualifies it as a series of still photographs. You cannot judge drunkenness from still photographs.

      • The receptionist’s testimony suggests Clayton ought to have been more aware of the state the woman was in; Ched at this point was not there and had no idea. This evidence could not be used to convict Ched without also convicting Clayton. Given that the jury acquitted Clayton, they must have concluded this incident didn’t prevent him from reasonably believing the woman was capable of consenting to sex. The claim that she “needed” steadying was not merely a witness observation; it was conjecture. Could the witness be sure the couple didn’t simply prefer to hold hands or embrace each other?

  7. @Caroline – where it seems to me the jury was inconsistent is, on the one hand, they believed in Clayton’s honesty and essential decency in taking reasonable steps to obtain consent to sex with himself, and was then complicit in the rape of same woman by Ched Evans! Clayton was present at the scene at the time Ched obtained consent or at least reasonable belief in consent – or failed to do so, depending on which account is the truth. Given that the jury concluded Ched had raped her, they must have believed Clayton also knew she was in no fit state to consent to sex with Ched, and then walked out of the room instead of intervening to stop the rape.

  8. Let’s be clear my in the case of Clayton McDonald the jury believed that he reasonably believed the victim to have consented to sex with him that’s not the same as saying she did. They were in no doubt however that Ched had no reasonable belief given that he arrived at the hotel and let himself in uninvited.

    • The jury were certainly not in “no doubt”, when their request to return a majority verdict was refused. What is more plausible – that they somehow became certain of their verdicts but only at this late stage, or that they compromised on the verdicts to avoid a further week of jury service?

      Evans’s defence was that the woman* factually consented, after he had entered the room, and was in a state to do so. The fact that Evans let himself in is of no relevance (not that he should need an invite to enter his own hotel room).

      *the constant infanilization of the woman to that of a ‘girl’ throughout the trial was inappropriate, as misleadingly implies a lower ability to consent.

      • The responsibility for what happened to Ched Evans lies solely with him because of what he did entirely of his own free will. He has no-one to blame but himself.

  9. @Philip
    Yes, I agree about the inconsistency in acquitting Clayton based, presumably, on a belief that he was decent enough to obtain consent, while simultaneously believing he was guilty of procuring a victim for his friend to rape.

    I disagree about the reasonable belief argument though. Surely to have a defense of reasonable belief you need to believe BOTH that the person consents AND that the person is in a fit state to consent? So then we’re back to the same problem – how could Clayton “reasonably believe” she was in a fit state to consent if the jury found that Ched did not have the same “reasonable belief”. If anything, Clayton spent more time with her and would therefore be the more likely of the two to know how drunk she was.

    You’re probably right that Clayton made a better impression in the witness box but that doesn’t excuse the fundamental logical flaws in the jury’s reasoning. I suspect they were also in a mentality of “we don’t know what happened so let’s go 50/50”. The mental gymnastics required to acquit one man while convicting the other are glaring.

    • But you only have to cause doubt in the mind of the jurors as to whether the belief was reasonable. Not prove that it was. If they have any doubt, they must acquit.

    • @Caroline. Absolutely. Nothing excuses a guilty verdict without proof beyond a reasonable doubt, anyway. It’s possible the woman’s condition changed for the worse after she had sex with Clayton and before the sex with Ched. But that possibility is miles from sufficient proof. Given that she remembered nothing, we only have the witness accounts of Ched and Clayton. Much was made of them contradicting what each other had said that night. But who, in their place, could have remembered everything? I couldn’t remember what I said in my post to you last night without reading it again.

      • Doesn’t the same apply to any situation in life 100% recall isn’t possible is your argument therefore there should be no prosecutions?

        • Of course not. But it’s dangerous to convict someone on little or nothing more than that their recollection of who said what and when was at variance with another witness – especially when the only witnesses to the actual sex are the two defendants because the complainant has claimed she remembers nothing.

  10. @Liberte @Tony I’m sure the original CCTV footage is a video recording, or at least sufficient to convince Ched’s legal team they can use it to convince three appeal court judges it proved the complainant was not too drunk to consent to sex at that time. That’s the test: too drunk to consent, not still over the limit for driving a day later. If the latter was sufficient to render a woman incapable of consenting to sex, there would be more prisoners than night clubbers.

    • @Phil Giddings the point was people do not necessarily sober up after two hours of not drinking the alcohol is still in their system in high levels to render them incapable of consent. They should have seen she was not in fit state to consent and left her alone. Anyone who thinks a drunken woman (or man) is fair game I suggest they hand themselves into the police the next time they do and let the courts decide.

      • “Drunken” does not equal “too drunk to consent”. Nonetheless your advice is sound. But how many clubbers would take it? How many drunken women wake up the next morning with NO regrets about the strange guy in the bed they had sex with the night before?

        BTW if a woman thinks a man is drunk or too drunk to consent to sex, she has nothing to worry about because the man has no legal recourse. And if she becomes pregnant as a result, the woman still has all the legal rights and the man only has legal responsibilities.

        • Phil – explain to me how a man who does not want sex is able to perform. I’m endlessly intrigued by the seeking of equivalence by men when it’s not comparable… “I didn’t want to, but I got an erection, (a sign of sexual arousal as I’m aware), and then I ejaculated all of this against my will.” In short how did he get it up.

          And drunk or sober any man can father a child and then try to shirk his responsibilities to the child he helped to create because goodness knows wearing a condom is out of the question.

        • C’mon Philip let’s have an answer to L-E-S. There is no equivalence here. (Yes, there could be if a woman was alleged to have performed one of those sexual acts in which she performs on a man too drunk to agree to it – and goodness knows there’s nowt so weird as folks – but that’s not this case).

          A man cannot perform what I might call the traditional without being sober enough to intend to.

          • Sorry, Andrew and L-E-S, but this is simply not correct. Men frequently experience physical arousal even when they (mentally) don’t actually want to have sex. It’s called an involuntary physical response. Women experience it too and I’m sure we would all agree that just because a woman displayed signs of physical arousal that shouldn’t invalidate her right to refuse consent.

            And men can certainly perform while drunk in my experience. I have had many an intoxicated encounter with an equally intoxicated male and as I recall there were no “logistical” problems (beyond swaying and occasionally falling over on the way to the bedroom).

  11. For Pete’s sake, Judge Worthy, it’s in the nature of things that actual proof (in capitals if you insist on shouting) of intercourse is rarely or never available – in fact the admission of the defendants is the best there is going to be.

  12. @Danbunting The Feltham case doesn’t seem to apply here. The case certainly illustrates the difficulty of winning an appeal with the argument that missing video evidence might have exonerated the defendant and therefore made a fair trial impossible. But this is not Ched Evans’ argument. His argument is that video evidence which was not available at the trial does indeed support his case, and the relevant video recording is still available for the court to examine.

  13. It still doesn’t change the fact that both defendants claimed the victim gave consent but neither could agree on who she gave that consent to.

    All along I’ve believed that the appeals are for nothing more than Evans to resurrect his career and gain public sympathy in order to do so.

    • I agree but what’s troubling is judgement is reserved surely the facts that were established at the original trial haven’t changed.

      • Completely agree. The new evidence is rumored to center on witness statements and CCTV, how reliable could those witnesses be?
        The Crown stating that they would move towards a re-trial if the conviction is quashed appears to be more of a ‘covering’ bases statement rather than there being anything to read into it. My take on it is that the CPS would be confident of getting a 2nd conviction if re-tried.

  14. @Caroline – sexual arousal is an involuntary response. I don’t think so. In fact highly sceptical that fear (I’m about to be raped) would not inhibit any arousal.

    • Look up involuntary sexual arousal. It happens commonly in both women and men, even to the extent of orgasm (again, in both women and men). The idea that it’s impossible is a common rape myth but, like most myths, it’s not true. I don’t want to post a link in case that goes against Dan’s commenting policies but there’s plenty of information about this topic, both from a scientific perspective and on victim support sites. You can find it on google petty easily.

      • Well I’ve had a look and I do not agree it’s common it appears to be discussed in relation to women, on the UK sites, in terms of sexual dysfunction but a few sites also discussed it in relation to rape and said that while it happens it’s not common. As regards to men…rape is penetration of the mouth, anus, or vagina, without consent, with a penis. Women do not rape men (and that’s not to say men can’t be sexually assaulted) and what was described by Phil is men seeking equivalence where there is none.

        • Well, common is of course a subjective word but in the US about 4% of people who report being raped also report experiencing an involuntary orgasm. For obvious reasons, that percentage is thought to be a massive underestimate because public attitudes are sceptical of a charge of rape under those circumstances. One therapist estimated the true number is somewhere between 10% and 50% based on her own patients.

          I know women don’t rape men in the legal sense, but from what I can tell Phil was describing a situation where a drunken (but still physically functioning) man might have sex with a woman, wake up next morning remembering nothing, and then report the woman to the police for sexual assault. I disagree with Phil’s assertion that there would be no recourse but I do agree that a man in such a situation would have a far tougher time being taken seriously. Attitudes such as “how is that even possible unless he wanted it?” demonstrate why that is the case.

      • Philip

        Philip

        “You never had a wet dream?”

        A somewhat personal question, even anonymously online, but I will tell you this: I have never had intercourse with a woman unless we were both awake.

        Not necessarily stone cold sober. But both awaqe of what we were doing it and doing it because we wanted to.

Comments are closed.