It is not uncommon for criminal cases to catch media attention, and this is particularly true where a case involves figures in the public eye. Former Welsh striker Chedwyn (Ched) Evans, was recently cleared of rape after his conviction was quashed and a retrial found him not-guilty of having non-consensual sex with his accuser. This case has been the subject of a great deal of media attention, not only due to the celebrity of Mr Evans himself, but also for the operation of the law of evidence in cases of alleged rape. In this blog, we review the life of Mr Evans’ case and highlight key aspects of the process that are worthy of note.
Owing to the many views that have been exchanged relating to Mr Evan’s and the events surrounding his imprisonment and the subsequent legal challenges to his sentence, there is a great deal of confusion around how this case came into being in the first place. The difficulty in reviewing the case of Mr Evans is that, owing to it being a criminal case decided by a jury, there is no available transcript of the initial court proceedings. However, there is a full narration of the facts of the case available from the Court of Appeal (the involvement of which is discussed later).
On 29 May 2011 Mr Evans was reported to have been out enjoying a night-out with his former team mate, Clayton McDonald. In early morning on 30 May 2011, both men are reported to have come across a young woman (the complainant) who appeared to be drunk. The young woman went to a hotel with Mr MacDonald, who intended to sleep her. The pair were later joined by Mr Evans who is reported to have been invited to join the pair in sexual intercourse by Mr McDonald, to which the complainant is reported to have been a consenting party. The following morning, the complainant awoke to find herself naked and with no recollection of the events that transpired with Mr Evans and Mr McDonald. These facts culminated in an allegation of rape being raised and brought against both Mr Evans and Mr McDonald.
Evidence before the trial court demonstrated that the complainant was extremely drunk on the night in question, but doubt was cast on whether this extended to memory loss. Ultimately, Mr McDonald was acquitted of rape while Mr Evans was found guilty and sentenced to five years imprisonment.
The Appeal courts were called upon to review the conviction of Mr Evans on two separate occasions. The first instance related to an appeal against Mr Evan’s conviction on a number of distinct points:
The verdicts reached by the jury for Mr Evans and Mr McDonald were inconsistent
It was argued that since Mr McDonald was found innocent of rape, it was illogical for the same not to have been the case for Mr Evans. The Appeal Court did not agree with this argument: the trial was a joint trial and the jury was required to consider distinct (although overlapping) evidence against both men. It was pointed out that it was entirely a matter for the jury to consider whether the complainant, owing to the facts of the situation, had consented to intercourse with Mr McDonald but not with Mr Evans.
The judge in the trial case failed to properly instruct the jury having not pointed out that a victim could still consent to intercourse even if they were intoxicated, and had no memory of the event.
This is a complex area of the law. However, the Appeal Court could find no substantive error in the judge’s direction to the jury.
New evidence had come to light which, had it been shown to the jury, could have changed their decision on Mr Evans’ guilt. This argument related to a report produced by a professor of biomedical science which pointed out that the complainant’s intake of alcohol had severely impacted her long term memory of her interaction with Mr Evans. The report also pointed out that notwithstanding her lack of memory, there was no reason to suspect that this affected her ability to make informed decisions relating to consent.
The Appeal Court took the view that this evidence was not admissible, and was contrary to what Mr Evan’s had reported during his trial.
Ultimately the Appeal Court found the sentence to be appropriate, and refused to grant Mr Evan’s appeal.
Mr Evan’s case was later brought before the Criminal Cases Review Commission (CCRC) for its consideration. Following a ten month review, the CCRC decided to refer the case back to the Court of Appeal after satisfying itself that there was new information that had not been raised at Mr Evan’s trial, and could have supported his defence. This evidence was later deemed by the Court of Appeal to be sufficient reason to quash Mr Evan’s conviction for rape and order a retrial.
The evidence in question that resulted in a retrial being ordered related to the complainant’s sexual history. There are strict limits imposed, under the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act), in criminal trials involving rape on how much information can be divulged regarding an alleged victim of rapes’ sexual past. However, the case of Mr Evans was deemed to be sufficiently rare to require that this information be disclosed.
The new information that the jury heard amounted to accounts of two gentlemen who had had sexual intercourse with the complainant a short time before her interaction with Mr Evans. This included testimony that she had asked him to “go harder” during intercourse. Further, another gentleman is reported as having told the jury that the complainant “dictated” the terms of their intercourse and also as having appeared drunk on that occasion.
The reasoning as to why this evidence was admitted at the re-trial is complex. However, a key reason as to why it was deemed important enough to be presented to the jury at retrial is that it was sufficiently similar to the behaviour described in relation to her dealings with Mr Evans, to amount to more than a mere coincidence. In other words, evidence was presented that demonstrated that her conduct during consensual sex was largely similar to that which she claimed was non-consensual. This new evidence resulted in Mr Evan’s being found not guilty of having committed rape.
There has been much speculation about whether Mr Evan’s case is likely to prejudice the cases of others alleging rape. The fact of the matter is that Mr Evan’s case was very unusual, and it is incredibly rare for the courts to find circumstances as being so unique as to warrant a departure from the traditional position on the admittance of a complainant’s sexual history in evidence. It was recently announced that there is to be a review of the 1999 Act and its operation in rape cases.
Being alleged to have committed rape can be incredibly distressing for people, and can have a disastrous effect on them and their family, resulting in their being alienated by their neighbours and vilified without any formal evidence as to their guilt. I, Mark Kelly am a leading criminal barrister with experience of representing individuals alleged to have committed a range of sexual offences. I appreciate the difficulties of attempting to keep faith in the legal system when so many in society are quick to decide that someone is guilty merely owing to circumstantial evidence. I make it a point to review the entirety of your situation, and will design and deliver a robust defence to any allegations against you. If you have been accused of having committed rape or any other sexual offence, contact my clerks today.
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