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Ched Evans: sifting facts from fiction

A lot has been said – and continues to be said – about former Sheffield United striker Ched Evans’ conviction for raping a teenager in a Rhyl hotel room in the early  hours of 30 May 2011.

Over the weekend it was reported that Oldham Athletic were set to sign the striker. But a press conference that was said to be taking place yesterday didn’t happen. Instead, the Oldham directors met in a board meeting to discuss the situation and club sponsors Verlin and Mecca Bingo said that they would terminate their relationship with the club if they signed Evans.

There are moral questions that football needs to answer about the rights and wrongs of signing a convicted rapist, a man on the sex offenders register, but what are the legal and factual rights and wrongs? This Q and A is designed to sift the facts from the fiction.

Before we get to the Q&A, there is a basic set of facts:

  1. Ched Evans is a convicted rapist.
  2. An Appeal Court judge rejected his application to appeal saying that “I am not persuaded . . . that the fresh evidence, even if admissible on appeal, is such as to render the verdict of the jury unsafe.”
  3. At a subsequent hearing in front of three Appeal Court Judges at which Evans renewed his application to appeal, the three judges, including the Lord Chief Justice of England and Wales, the appropriately named Lord Judge, upheld Evans’ conviction, saying: “We can see no possible basis which would justify us to interfere with the verdict of the jury which heard all the evidence and reflected on it following a careful summing up by the judge.”
  4. Following the conviction, Ched Evans was sentenced to five years in prison. The Court of Appeal upheld the sentence, with Lord Judge saying: “Having reflected on this sentence which [was] passed by an experienced and highly respected judge, we have come to the conclusion that the sentence fell within the appropriate range. There is no basis to justify interfering with it”.
  5. In line with most offenders with this level of sentence, Ched Evans served half his time in prison before being released in October last year to serve the remaining of his sentence on licence in the community.
  6. Evans’ conviction and sentence means that he is on the sex offenders register indefinitely. He will have to wait until October 2029 before he can apply to be discharged from the register.

Q and A – What Evans’ supporters and apologists say

He maintains his innocence – he says he didn’t do it.

Actually, Ched Evans doesn’t say he didn’t do it. He is open about the fact that he did what he is accused of. In fact, the prosecution case against him was based on his own account of what happened in the hotel room – the victim has no memory of what happened.

His defence isn’t that he didn’t do what is alleged; but rather that what he did do should not be classed as rape. The law, however, is what the law is; not what criminals think it should be.

The only aspect that is in dispute is that Ched Evans says that the victim consented to have sex with him while the prosecution allege that the victim was too drunk to consent. The jury heard all the evidence and came to the conclusion, that Ched Evans raped the girl.

We don’t know on what basis they reached their decision but, based on the evidence presented to them, it is reasonable to conclude that they agreed that the woman was too drunk to consent.

Sentencing Evans, the trial judge, said that the victim was “extremely intoxicated”.

“CCTV footage shows, in my view, the extent of her intoxication when she stumbled into your friend,” His Honour Judge Merfyn Hughes QC was quoted by the Wales Online news service as saying. “As the jury have found, she was in no condition to have sexual intercourse. When you arrived at the hotel you must have realised that.”

And after the trial, the senior Crown Prosecutor for Wales, Nita Dowell, said that “Ched Evans took advantage of a vulnerable young woman who was in no fit state to consent to sexual activity. He did so knowingly and with a total disregard for her physical or emotional wellbeing.”

She continued: “It is a myth that being vulnerable through alcohol consumption means that a victim is somehow responsible for being raped. The law is clear: being vulnerable through drink or drugs does not imply consent.”

His appeal is being considered by the Criminal Cases Review Commission

One of the things that is often said in support of Ched Evans is that his case isn’t concluded. Those who argue this point to the “investigation” by the Criminal Cases Review Commission (CCRC). This argument confuses the law and also the purpose and role of the CCRC.

Ched Evans’ case is concluded: it was concluded when the jury found him guilty. Yes, there is a route of appeal but he was refused permission to appeal twice. His first application for leave to appeal was rejected by a single judge on initial sifting. He renewed his application in front of three judges, including, as stated above, the Lord Chief Justice of England and Wales, and was again told that he had no grounds for appeal.

The language of the Appeal Court judgment  is clear that the “new evidence” presented by Evans’ legal team is nothing of the sort. It includes a witness statement from somebody who confirmed that the victim had previously said that when she drinks a lot she can’t remember what happens; and from an “expert” who contradicted Evans’ first expert on the question of victim’s memory.

The Appeal Court judges said that issues about the victim’s memory was not a subject that the trial judge addressed during his summing up. They said: “that was not the issue in the case”. In any event, both pieces of “new evidence” supported the victim’s assertion that she had no memory of what happened in the hotel room.

They said: “In effect, it is now proposed that a new expert should be called to disprove the evidence given by the former defence expert and to assert no more than that the claimed loss of memory does not of itself lead to any implication that the complainant was not consenting to sexual activity at the time when it took place.”

And a submission to the CCRC does not mean that the body accepts that there are grounds for the conviction to be considered to be unsafe. Anybody convicted of an offence can ask the CCRC to look at their case.

Up until 30 November 2014, some 18,627 cases had been referred to the CCRC. Of those, some 17,183 have completed the CCRC processes. Just 568 have been referred to the Court of Appeal; and of those, just 374 have resulted in convictions being quashed.

This means that around 98 per cent of cases submitted to the CCRC do not result in the conviction being changed. In its advice to would-be applicants, the CCRC says that it “will need to find significant new evidence or new legal argument if we are going to be able to refer your case to an appeal court.”

The case hangs on the evidence of Ched Evans, his friend Clayton McDonald, and the victim. All three gave evidence at the original Crown Court trial. It is difficult to see what possible “significant new evidence” could emerge to show a different version of what happened in the hotel room.

The only other avenue for the CCRC to consider, therefore, is new legal argument. But the law on rape is clear. Sex without consent is rape. A rapist doesn’t need to jump out from behind a bush; or be wearing a balaclava; or be holding a knife to the victim’s throat. All a person has to do to be a rapist is to penetrate a person without their consent.

Neither Ched Evans nor his legal team have explained what their submission to the CCRC contained. They are under no obligation to do so; and would be acting unwisely if they did. But without knowing what they have submitted it is difficult to see what could possibly constitute “significant new evidence or new legal argument” in relation to the case.

Drunken consent is still consent

One of the claims made by Ched Evans’ supporters is that drunken consent is still consent. And it is. But how does that tie-up with a person being too drunk to consent and therefore a victim of rape if intercourse takes place?

This issue isn’t a new argument. It was addressed by the Court of Appeal and and by the trial judge. His Honour Judge Merfyn Hughes told the jury that: “A woman clearly does not have the capacity to make a choice if she is completely unconscious through the effects of drink and drugs, but there are various stages of consciousness, from being wide awake to dim awareness of reality.”

He continued: “In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. So you will need to consider the evidence of the complainant’s state and decide these two questions: was she in a condition in which she was capable of making any choice one way or another?

“If you are sure that she was not, then she did not consent. If, on the other hand, you conclude that she chose to agree to sexual intercourse, or may have done, then you must find the defendants not guilty.”

On this issue, the Appeal Court ruled that “those directions to the jury amply encapsulated the concept of the drunken consent amounting to consent. The judge did not use those express words; there was no obligation on him to do so. On occasions when those words are used or the issue is put in that way, it causes umbrage and indeed distress. But that he covered the concept of capacity and choice in his directions to the jury seems to us to be clear. The contrary is not arguable.”

So this is a question that the jury was asked to consider. It cannot be considered to be new legal argument.

Watch the video – the victim wasn’t drunk

Ched Evans’ website contains a video of the victim entering the hotel under the heading “View the complainant entering the Premier Inn and judge for yourself.” The publication of this video by Ched Evans and his team might constitute a contempt of court (neither the court, nor the copyright holder, Premier Inn, have given permission for the video to be used), a breach of the Data Protection Act (which states that personal data should only be used for the lawful purpose for which it was acquired) and a breach of the Sexual Offences (Amendment) Act (which prohibits publication of any information which could lead to the identification of the name or address of a victim of sexual violence, including rape).

Just before Christmas, the Attorney General’s office said that he was considering a complaint by the victim’s father about the video.

Ched Evans and his supporters claim that the video shows that the woman was not that drunk. They say: “As you can see from the footage, shown from two separate cameras, the complainant arrives in the front seat of a taxi with Clayton McDonald in the back seat. He gets out first and opens the door for her, the complainant passes the pizza to Clayton. The complainant believes that she has left her handbag in the taxi and so Clayton places the pizza on the floor and runs after it. He returns and they walk into the premier Inn together, the complainant linking Clayton.

“The complainant then remembers the pizza and goes outside to retrieve it bending down on her haunches to pick it up and carry it back in where the complainant re-joins Clayton. If you note the shoes they are extremely high wedges which the complainant had borrowed for the evening. Somebody incapably drunk would find it incredibly difficult to walk in them, never mind having the cognitive ability of remembering the pizza.”

Elsewhere on the website, in a bid to portray the victim in a poor light, they state that “The complainant left the kebab shop and walked up Queen Street. CCTV footage outside the kebab shop and on Queen Street showed her unstable on her feet walking up Queen Street; unstable on her feet crossing the road; squatting in a doorway; urinating in a doorway; and reacting to a car that flashed its lights at her.”

It also says that Ched Evans’ first encounter with the victim was when he stepped over her after she had fallen over in the kebab shop.

In any event, anybody who has been drunk will know that you can often find the capacity to get home or to a hotel before falling into a sofa or bed and then falling asleep. I’m not saying that this is what happened in this case. We simply do not know – but CCTV of a drunk person entering a hotel is not evidence of what happened to that drunk person once they landed on a bed.

The verdicts are inconsistent – either both men are guilty or both men are innocent

This is a line that is often trotted out by Ched Evans’ supporters. In order to address this claim, it is necessary to summarise what happened that evening in more detail than this post has done so far. In doing so, I am drawing on “facts” from Ched Evans’ website and the Court of Appeal judgment as I have no direct knowledge.

Ched Evans had been out drinking in Rhyl with another footballer, his friend Clayton McDonald. Earlier, Evans had booked and paid for a room at the Premier Inn for McDonald to stay in. Separately, the victim had herself been out drinking and at some point between 3.00 am and 4.00 am, both the footballers and the victim were in a kebab shop.

Ched Evans and Clayton McDonald had become separated. While Evans was in a taxi going to one place with his brother and a friend, the victim and McDonald talked and it was agreed that they would go together to McDonald’s hotel room. While in the taxi, MacDonald sent a text to Evans saying he had “got a bird.”

On receiving the text, Evans told the taxi to head to the hotel. While his brother and friend stayed outside, Evans went into the hotel and lied to the receptionist to get a key to the hotel room.

After letting himself in he saw McDonald having sex with the victim. This stopped when he entered the room. The two men, contradicting each other, say that the other asked if Evans could join in; and that after a “yeah” from the victim Evans performed oral sex on her before having sex with her.

While this was taking place Evans’ brother and friend were outside the hotel trying to film what had happened on their phones and the hotel receptionist was listening through the hotel door from the corridor.

Evans then left the hotel, leaving via a fire exit so that he wasn’t seen by the receptionist. McDonald left through the hotel’s main entrance and told the receptionist to “keep an eye out for the girl” because she was sick.

The girl woke up at around 11.30am with no recollection of how she got to the hotel or what had happened to her. She had a headache and was confused. After being collected by her mother, she reported the matter to the police.

After an investigation, both Clayton McDonald and Ched Evans were charged with rape. After a trial at Caernarfon Crown Court in April 2012, the Jury returned a not guilty verdict in the case of McDonald and a guilty verdict in the case of Evans.

Ched Evans’ supporters continue to point to the different verdicts as evidence of a miscarriage of justice; despite the fact that there is a different set of circumstances and actions.

Ched Evans’ website states: “One could conclude that if the jury found that the complainant had consensual sex with Clayton McDonald then the sex that occurred with Ched would be consensual as well as the issue was over her ability to consent and she of course could remember no sexual activity at all.”

Elsewhere on the website, they say: “The prosecution’s case was that she was too drunk to consent with either but logic dictates that the complainant must have been more sober with Ched than Clayton due to the passage of time.”

This not only ignores the way alcohol works (see the point I made earlier) but it ignores the facts of the case. We do not know, nor are we allowed to know, why or how the jury came to the decision they reached. The secrecy of the jury room – all jury rooms – is absolute in English law.

The jury are not asked to decide whether or not a woman was raped. Nor are they asked to decide which version of a story they prefer; or which account is more likely to be true. A jury is asked only one question: is the case against the defendant proved beyond reasonable doubt.

In this case, the woman went to the hotel with Clayton McDonald and video footage showed that she appeared to do so willingly. This does not prove that she consented – but the jury aren’t asked to decide whether or not there is proof that she consented (is there was, the judge would have stopped the case before the jury were asked to reach a decision). But it might well be sufficient to cast reasonable doubt as to whether or not there was consent – particularly as the victim had no recollection of what happened.

But such a doubt does not arise with Evans. The victim did not go back to the hotel with him. The text message (From McDonald, not the victim) merely said that McDonald had “got a bird” – not that the “bird” was inviting Evans to join them. Evans lied to the receptionist to get a key to the room. He didn’t knock the room door and wait to be invited in; but he let himself into the room where (if you accept his version) he must have known that sex was likely to be taking place. And he would have known how drunk and vulnerable the woman was – he had to step over her at the kebab shop.

Evans convicts himself with his own testimony: he claims that the victim consented. Did she consent to him lying to get a key to a hotel room and letting himself in so he could get a look at her at a time when he thought that she would be naked? No. By his evidence he spoke to her for the first time in the hotel room. Where was the consent to be ogled in the nude?

Did she consent to his brother and friend filming the encounter through the hotel window? He might argue that he isn’t responsible for their actions; but he took them to the hotel in his taxi; he asked them to wait; and he must have told them that there would be something worth filming.

The verdicts are different; but they are not inconsistent. And it is perfectly reasonable for the jury to reach separate verdicts. In the Appeal Court judgment, the Lord Chief Justice said that “we find nothing illogical or inconsistent about the verdicts.”

Ched Evans has served his time – he is entitled to rehabilitation and to get his job back.

There is no law or any rules to prevent footballers from returning to their profession after serving a sentence. There are numerous cases where this has happened.

But nobody convicted of a crime is “entitled” to have their job back. Most employers would treat a conviction for a serious criminal offence as an act of gross misconduct or an act likely to bring the employer into disrepute. Such an eventuality, for most people, is likely to lead to instant dismissal.

In many professions, any serious conviction, or a conviction of particular types of crime, would exclude you from that profession for life. Examples include taxi drivers, security guards and teachers, where convictions for sexual offences will prevent you from returning to that profession after release from prison. And a person convicted of fraud will not find work as a chartered accountant or banker.

The consequences of committing a criminal offence extend far beyond prison and the sentence imposed by the court. Judges are well aware of these consequences and bear them in mind when passing sentence.

The range of appropriate sentences for Ched Evans’ offence was between four and eight years; the Appeal Court said. Evans was sentenced to five years – at the lower end of the scale. We don’t know why the trial judge reached this decision, but he had in mind that Evans’ had no future as a footballer, telling him that he had “thrown away the successful career in which you were involved.”

In November last year, when Sheffield United took the (later overturned) decision to allow Ched Evans to train with them, they issued a statement in which they said: “The Club agrees with the recent statements of The PFA, to the effect that professional footballers should be treated as equals before the law, including in circumstances where they seek to return to work following periods of incarceration.

“The Club rejects the notion that society should seek to impose extrajudicial or post-term penalties on anyone. In a nation of laws, served by an elected parliament and duly constituted courts of law, there can be no place for ‘mob justice’. The Club believes that the only penalties following from a conviction on any charge should be those set forth in law and deemed appropriate by a court of competent jurisdiction.”

Those who oppose Ched Evans’ return to football are not a “mob”. Nor are they calling for “extra-judicial penalties”. Ched Evans’ supporters, including the PFA and Sheffield United, say that they want footballers to be “treated as equals before the law” but they then campaign for them to be treated differently from ordinary people and be given a hero’s return.

It is common sense to most people – including the trial judge – that rapists should not return to football (hence the statement that Evans had “thrown away [his] successful career” – this is not an extra-judicial penalty; but the self-imposed consequence of raping a woman.

The law recognises the acknowledged proven fact that sex offenders are more likely to re-offend than other criminals. That is why Parliament established the Sex Offenders Register with mandatory reporting restrictions. This includes a requirement for registered sex offenders to notify the police where they are living or staying for more than a few days in a year; and restrictions on overseas travel.

As I have stated earlier, Evans is on this list indefinitely. He can’t even apply to be considered for removal for another 15 years. And under the Rehabilitation of Offenders Act, his conviction will never become spent. This is not about “extra-judicial penalties” or penalties that are not “set forth in law.”

The law accepts and respects that employers will want to – and are entitled to – take some convictions into account when considering whether or not to give somebody a job.

Employers – including football clubs – have a duty to all of their employees. How safe would women feel working alongside a convicted unrepentant rapist? More importantly than how they feel, how safe would they actually be?

Having said this, rehabilitation is not an optional part of our criminal justice system; but one of its core aims. But what does this mean?

It is difficult to see how a person who refuses to acknowledge that he did wrong can be rehabilitated. In a video message recorded after his release from prison, Evans said: “I made an incredibly foolish decision  and failed those people that trusted and believed in me; most of all, Natasha [his girlfriend] and our families.”

But he continues to insist that what he did in that hotel room was not rape – despite the fact that, in law, it is. He sees it as nothing more than a one-night stand; an act of infidelity against his girlfriend; rather than the serious sexual offence that it is.

There is a lot of help for offenders who want to rehabilitate themselves. But it starts with the offender: if a person can’t accept that what they did is wrong; then true rehabilitation cannot begin.

In his video message, Ched Evans said that: “It is a rare and extraordinary privilege to be permitted to play professional football.” He is right. Being a professional footballer isn’t just “a job” – it is a representational role and a privilege afforded to the few rather than the many.

There are lots of jobs that Ched Evans could do. I haven’t seen any of the campaigners arguing against his return to football from saying that he should be denied every job. but they make a distinction between returning to gainful employment and returning to the “rare and extraordinary privilege” of the representational role that being a professional footballer is.

Ched Evans is not responsible for the abuse his victim has received

It is inevitable that the focus of media attention will be on Ched Evans rather than his victim; but she should not be overlooked. She is entitled to lifelong anonymity; but this has not stopped Ched Evans’ supporters from naming her and targeting her on social media. She lives in fear of her life and has had to move house and adopt new identities several times.

Close supporters of Ched Evans say that he is not responsible for what strangers do. But we aren’t talking about strangers. These are the actions of Ched Evans’ own family.

The abuse began even as the rape was happening as Evans’ brother, Ryan Roberts, tried to film the attack. And it continued after Evans’ conviction when Evans’ Cousin, Gemma Thomas, named the victim on social media despite her legal right to life-long anonymity.

In a Tweet, Thomas described the victim as a “money-grabbing slut”. Similar language was used by a friend of Evans, Craig McDonald, who also named the victim. The two were among nine people who were convicted of naming the victim in November 2012. They were ordered to pay the victim £624 in compensation – a very small sum considering the impact that their actions has had – and continues to have – on the victim.

What was Thomas’ response to the conviction? Was she repentant? Not much. “I understand it’s against the law and I wouldn’t have minded having a big fine because I understand what I did was wrong, but it’s the fact that it’s compensation and it’s just … I don’t know, it’s hard thinking that I have got to pay compensation, knowing that I know my cousin is innocent,” she told BBC Five Live.

Of course, Ched Evans is only responsible for his own actions. He can’t be accountable for what his friends, his cousin, or his brother do. But Evans and his family – through the chedevans.com website – is encouraging a witch-hunt against the victim.

They are offering a “significant reward” for “any information, however insignificant you believe it is” about the victim.

They say: “If you attended the trial or any part of the legal process pre or post conviction and are concerned by the verdict and think you can help, please do not hesitate to contact [a firm of private investigators] and put right the injustice that has happened to Ched.

“There is a significant reward for new information that can be used as evidence that leads to the acquittal of Ched Evans.”

This is encouraging supporters to continue tracking down and harassing the victim. Following critical media reports about the reward, a disclaimer appeared on the website saying: “There have been recent media reports about Ched’s website and in particular the reward for information.  To clarify the reward is offered by his supporters, not Ched who has no access to any funding.”

It matters not who is funding the reward; it is being offered and promoted on a website that is registered to Ched Evans.

The only people that know what happened in that hotel room are Ched Evans and Clayton McDonald. The victim has no recollection. What information are they seeking? What they want is information to damage the victim’s reputation. We already know what the Evans’ family think of her (“money-grabbing slut”) but now they seem to be seeking to prove this in a court of law.

Well, even if the victim is a “money-grabbing slut”, it might surprise Ched Evans and his supporters to learn that even money-grabbing sluts are entitled not to be raped.

It is difficult to see how information about the victim could amount to “substantial new evidence” about what happened in the hotel room. And in any event, Evans’ lawyers have already submitted their case to the CCRC. So what additional information could they be looking for?

Ched Evans could do a lot to prevent the abuse that his victim has and is suffering by removing the reward from his website and by issuing a statement condemning the abuse and calling on his supporters to stop abusing and identifying her.

That would be the gentlemanly thing to do; but one thing that we have learned through this entire process – and the evidence of Evans himself – is that he is no gentleman.

Note: this blog was corrected at 3.45pm on Tuesday 6th January to make clear that the Appeal Court judgments were not appeal hearings; but applications for leave to appeal.

  • Jane Fae

    An utterly excellent blog/analysis of the case and pretty much, i would suggest, the last word that needs to be said on it.

    I have one very minor uber-pedantic point to make, and if i am wrong, please feel free to say so.

    As far as I am aware, Evans has never had an appeal, as such.

    He asked the trial judge for leave to appeal…and when that was refused, he sought leave to appeal from the appeal court.

    The view of all four judges was that there was nothing in his case sufficient even to trigger an appeal.

    In
    other words. They didn’t look at new evidence and reject it. They said
    there wasn’t sufficient new evidence to merit even looking at…

    This blog pretty much says that…and i am not sure what difference it does make, since in general, those arguing the “evans is innocent” line don’t really seem to have much awareness of the finer legal detail in this area…

    • http://footylaw.co.uk Footy Law Blog

      Thanks. You’re right. The hearing in front of the three judges was a renewed application to appeal against conviction and sentence.

      I’ll amend this now.

    • jameslc

      I politely beg to differ-the post is wrong in a number of regards.

      • Jane Fae

        not many. As the author makes clear elsewhere, they are not re-trying the case as so many here (including yourself) wish to do, but giving a good legal exposition of what happened and why.

        As you yourself say: you are not a lawyer, and on points of basic law, you have made some pretty basic errors.

        The blogger has, from reading back over the comments, made two quite minor errors: conflating leave to appeal with an appeal and being unaware of the precise stage the CCRC process is at.

        By comparison to most of the bilge on here, a lot from peeps who do not even understand what constitutes the criminal offence of rape, that is small change.

  • m sacha

    This comment has been removed by the footylawblog.
    The contributor, “m sacha” will be reported to Disqus, Gmail and Vodafone New Zealand.

  • Dan

    Excellent piece.

    A minor point re. the different verdicts for Evans and McDonald: reasonable belief on the part of the pertetrator that the victim consents to sex is a defence to rape. So the jury may have decided that although the victim was too drunk to consent by the time she got to the hotel room, McDonald nevertheless had a reasonable belief that she did consent, perhaps because he had met her in town and she had agreed to come in the cab back to hotel with him (whereas Evans simply turned up).

  • angus

    Thank you for this blog – it is excellent.

    It seems to me that, despite what some people think, Evans could have apologised for what happened that night and shown remorse without prejudicing his attempt to have his conviction overturned.

    On any analysis, both men involved acted reprehensibly and he could easily have phrased an apology along the lines of “Whilst I do not believe my behaviour constituted rape and I am pursuing my appeal in that regard, nevertheless I realise that my behaviour did fall way below what society expects blah blah blah”. This plus an exhortation to his supporters not to harrass Ms. X would have gone a long way to avoiding some of the vitriol being levelled at him – purely as a media exercise he should have done it even if he didn’t mean it. And, of course, he should have meant – what they both did was terrible.

    I too can totally see why the jury reached different verdicts. They are not saying the other guy did not rape her, they are saying they could not be sure beyond reasonable doubt that he did but were sure as regards Evans. To argue that it is all or nothing is totally disingenuous on the facts.

    Where I have some concern (and I am not sure where I stand on this so I am just throwing it out there) is the whole issue of alcohol and consent. Clearly someone unconscious cannot consent to anything (unless prior consent has been given as with an operation or similar) and, as the judge rightly pointed out, there are degrees of consciousness. But what if the alleged perpetrator has been drinking as well? Is there a rule that women can go out and get pissed but men can’t because, if they do, they can have never truly assess any purported consent so there can be no reasonable belief and they will always be open to the allegation?

    The crime took place at 3-4am so all concerned must have been drunk to an extent yet no mention is made of the men’s mental faculties – are we saying that girls can go out, get smashed, shag someone they wouldn’t ordinarily have done and cry rape the next morning when they wake up and feel ashamed? I realise there is a great sliding scale here and, to me, on the stated facts of this case, the rape charge against Evans is made out.

    But I am not sure that the concept of reasonable belief does this issue justice. It is easy to sleep with someone we wouldn’t normally sleep with when pissed but that level of pissedness clearly does not vitiate consent (based on the judge’s directions) whereas there are levels where it is blindingly obvious that there can be no consent.

    But what if the guy is equally smashed – is he a rapist because he has some form of enhanced duty of care with regard to her consent which he drunkenly assesses to be freely given? Are we saying that guys that get as pissed as the girls do, do so at their own peril and, by extension, that men are under penalty of criminal sanction to save women from themselves on a night out?

    I have no formed opinions on this, just interested in people’s views. But if so, there needs to be some serious re-education on alcohol…

  • Pingback: A journalist with a police caution for domestic violence describes Ched Evans opponents as “morons” | Gavin Drake()

  • skepticalbystander

    What I find implausible about the alleged victim’s testimony, is that she claims not to remember any sexual activity at all, having consumed so much alcohol. Blood tests revealed traces of cannabis, cocaine and according to her own testimony she had consumed a quantity of alcohol to be 2.5 times over the legal drink drive limit. Although to some people this may seem excessive, for a person who by her own admission regularly imbibes larger quantities of alcohol and other mood altering substances, this is not exceptional and unlikely to result in total memory loss, unconsciousness or the inability to give consent to sexual activity. If her testimony cannot be relied on then the entire case aginst the accused collapses.

    The alleged victim’s actions subsequent to the incident, i.e. deleting tweets and Facebook postings also cast doubt on her reliability as a witness in my opinion.

    The actions of all involved on the night in question can easily be interpreted as un-gentlemenly and un-ladylike, however the more I read the more I feel that a serious misscarriage of justice has occured.

    • http://footylaw.co.uk Footy Law Blog

      Ched Evans’ application for leave to appeal contained two pieces of new evidence:

      The first was a witness statement from a friend of the victim who said that she had told him – prior to the rape – she can’t remember what happens when she drinks.

      The second was an expert report from a professor of biomedical sciences, who said that the victim appeared to have “suffered anterior-grade amnesia as a result of the high dose of alcohol which she consumed”.

      He went on to say that “It appears from the evidence that her short-term memory was functioning at the time around the incident, but that the long-term record of that memory has been ablated by the high concentration of alcohol. There is, therefore, no memory record of those events and attempts to jog the memory may lead to confabulation.”

      This expert actually contradicted the evidence of Ched Evans’ expert at his trial. He had attempted to calculate the likely extent of the victim’s inebriation, and had “approximated to something like 2½ times the legal driving limit”.

      He told the jury that he would not have expected any memory loss and that there were “significant doubts about the claim made by the complainant that she had suffered a memory loss. In effect, it was suggested that her assertion was false,” the Appeal Court said when summarising his evidence.

      The question of whether or not the victim was too drunk to remember was not directly relevant to the facts of the case; the question was whether or not she was too drunk to consent. That was a decision for the jury, on hearing all the evidence.

      Their conclusion is that Ched Evans is guilty. That has been upheld by the Court of Appeal. The public statements from Ched Evans and his supporters via his website seem to want to re-hear or re-trial the same evidence and facts that were heard at the trial.

      Convictions aren’t overturned because you are unhappy with them. They are overturned if substantial new evidence comes to light. None has.

      • skepticalbystander

        Well If the question is was she was too drunk to consent to sex with Evans and the answer is yes, then surely she was too drunk to consent to sex with McDonald, so the verdicts are inconsistent?

        • deiseach

          Based on the pattern of events that we know to be correct, McDonald had a reasonable expectation that she consented. Evans did not. That is a perfectly acceptable interpretation of the decision of the jury, and the various appeals have concluded there is no reason to second-guess it. Maybe some shocking new evidence will emerge to show the jury were not in command of all the facts, but it seems unlikely.

          • peterdavis

            Sorry to keep repeating this but the court was told she told Evans to ‘lick me out’ and ‘fuck me harder’. Isn’t that consent?

          • deiseach

            See above.

          • peterdavis

            Yet Evans clearly maintains this is true, as does McDonald. And if true it could clear his name. Any idea why the jury would reject it?

          • deiseach

            I don’t know why they chose to not believe them, only that they didn’t. Have you some reason to believe that they might be prejudiced against the defendants? There’s money to be made if you can provide such evidence as it might lead to an acquittal.

          • peterdavis

            No I am just interested as to why Evans should choose such a difficult and tortuous path, when playing along with what the establishment wants would get him his career back.

            Also – you suggest: ‘Do you honestly believe that McDonald and Evans had no incentive to concoct evidence?’ Speculation of course, you cannot know and neither can I. By that token, is it not as possible that the accuser also had ‘incentive’ to ‘concoct’ evidence – by just saying ‘I don’t remember’ over and over again – a very easy ploy to avoid answering difficult questions?

          • http://footylaw.co.uk Footy Law Blog

            We don’t know why the jury reached its decision. If they decided that she did say it they would be bound to return a not-guilty verdict.

            Evans and McDonald had slightly different accounts of what was said. The hotel receptionist who (for some reason that has not been explained, unless it was explained at the trial but not reported) was listening through the door. His reported testimony does not include any speech.

          • peterdavis

            The receptionist said he heard ‘both female and male voices “squealing, panting and groaning”. Agreed – not speech – but those type of words ‘lick me out’, ‘fuck me harder’ are not exactly going to be broadcast in queen’s english I don’t suppose. So there could have been words, miingled in with the sounds of sex. Did he say if it was McDonald’s or Evan’s voice he heard panting and groaning by the way (assuming he didn’t squeal unless he got his willy caught in his fly)?
            I am interested because unless he has real convitction as to his innoncence, Evan’s best professional move would have been to issue an apology, accept his guilt, beg forgiveness (all via carefully worded statements of course) and ask nicely for his career back.

            The fact he chooses a much, much tougher path suggest he genuinely believes he has a case (as does McDonald in later interviews).

          • deiseach

            I have no doubt that Ched Evans believes that what he did doesn’t rise/lower to the level of rape. That doesn’t mean he’s right.

          • Philip Giddings

            Obliging a woman who demands that you give her oral sex is lowering to the level of rape?

          • deiseach

            The jury did not believe that happened and I see no reason to second-guess them.

          • Philip Giddings

            But there was no evidence in testimony or otherwise that could have satisfied a jury beyond a reasonable doubt that Ched Evans was lying.

          • http://footylaw.co.uk Footy Law Blog

            Clearly there was. Because the judge allowed the case to go to the jury; the jury found the case against him proved; and four Appeal Court judges have concurred.

          • Philip Giddings

            The appeal judges concurred with the trial judge’s decision, you mean? Could the appeal judges have found the case proven in its entirety, if their purpose was not to gainsay the jury or consider the original evidence but only new evidence and arguments?

            I realise that the defence proved nothing sufficiently for the trial judge to throw the case out of court, and therefore it had to go to the jury. My problem with this, and I suspect the problem of a lot of fair-minded people who study the case, is that in this “she said / he said” situation in which independent evidence proved nothing sufficiently either way, the evidence of testimony proved nothing beyond a reasonable doubt, either.

            Moreover, Ched’s conviction does not give you or any militant pressure group the authority to conclude that he is unrepentant and irredeemable as a footballer, and then impose this with menaces on football clubs. Only the authorities sanctioned by law, such as the prison and probation services and parole board, may determine his fitness for rehabilitation; and football clubs are supposed to have the autonomy to consider his fitness (moral and physical) to play football, without fear or intimidation.

            Ched’s position is that the woman clearly capably consented to sex. The jury decided, without sufficient evidence, not to believe him. No one knows what actually happened and Ched maintains that his version of events is the truth. This is not the same as a failure to recognize that rape is rape, and must have been a factor that weighed heavily in the consideration of those with authority to decide whether it was safe and appropriate to release him from prison on licence on conditions that were not designed to stop him playing professional football.

            In other words, for all its faults, we have a civilised judicial system which recognizes everyone’s fundamental human right to protest their innocence, free from undue pressure or (further) punishment for doing so.

            If you think Jean Hatchet and her followers should decide this instead, and overrule the proper authorities, you should work for them instead of the legal profession which is supposed to uphold the rule of law.

          • anneteak

            The point is that it isn’t even ‘he said/ she said’.

            She said nothing.

          • Philip Giddings

            Quite! This is what’s bothering me and all reasonable people. Given that the scientific evidence was inconclusive, the jury had to rely on the testimony of the defendants themselves as a basis on which to convict Ched.

            Was there a “Perry Mason moment” when the CPS barrister nutmegged Ched during cross-examination? If there was, Ched would be forced to concede game, set and match, and any defence lawyer worth his salt would have advised him any appeal was a non-starter – even if it wasn’t already blatantly obvious.

            Yet, there must be specific areas of dispute about the facts and strength of the evidence, for any competent lawyer to advise Ched that he has a case. If it was simply, as the feminist narrative keeps telling us, that Ched is “in denial” that he raped her, he would never find a competent, scrupulous lawyer to take on a hopeless case.

            The CCRC has said it will prioritise its review of this case “for specific reasons that are confidential but only relate to the facts of the case”. Why would they prioritise a hopeless case for only case-related reasons?

          • http://footylaw.co.uk Footy Law Blog

            “If it was simply, as the feminist narrative keeps telling us, that Ched is ‘in denial’ that he raped her, he would never find a competent, scrupulous lawyer to take on a hopeless case.”

            A solicitor’s job is to advise. It is for the client to give instructions. Solicitors often act for people they do not believe in but will argue strongly in accordance with their instructions. That is their job.

            Barristers have to take on any case given to them regardless of what they think about the merits of the case. This is to ensure that nobody is denied justice on the grounds that no barrister wants to represent them.

            As for the CCRC, they have not yet made a decision. That is why they are now investigating and reviewing the case. I have an outstanding FOI request to the CCRC about their decision to fast track the case.

          • Philip Giddings

            I invite readers to consider whether they believe a hypothetical scenario in which Ched’s solicitor has advised him he hasn’t got a hope in hell, and he is pursuing a case review and appeal anyway – and in which the CCRC would decide to prioritise a review on the grounds of the facts of a hopeless case.

            The CCRC has a consistent policy of confidentiality in not revealing its reasons for prioritising reviews of cases. Arguably this should change, but it’s not as if Ched’s case is being treated differently from any other in this regard.

          • EAB

            That isn’t true. Ched’s case has been fast tracked over other cases. There is a blog on a legal website complaining about this, stating in the writer’s opinion other cases deserve consideration over his, regardless of the new information.

          • john cox

            C’mon, man, For shame. You said yourself in your blog piece, rightly, that the case against Evans didn’t depend on believing or disbelieving his evidence. Of course the verdict doesn’t amount to a finding that he was lying.

          • peterdavis

            Which you would have also said about Hillsborough or the Birmingham Six?

          • deiseach

            The reason to second-guess the verdicts in the cases of the Birmingham Six and Hillsborough (not that there was a ‘verdict’ in the latter, but anyway…) is that the process in each case was corrupted by the police. When it comes to Ched Evans, did the police beat confessions out of anyone? Produce dodgy forensic evidence? Doctor unfavourable statements? Smear him in their favoured media outlets? Why would they even want to fit him up?

          • peterdavis

            re Birmingham Six – surely the police corruption only came out later, otherwise why was the verdict passed at the time? Or did the jury know that forced confessions has been used but were satisfied this was necessary for such a heinous crime? Did the jury accept that the police had cause to reasonably believe the accused had done it?

            Also, couldn’t it be argued that in the Evans case that, since the complainant didn’t initially want to allege rape, it was the police that started the whole thing? And who knows if the part of the motivation wasn’t to boost their rape convictions? I’m not saying this WAS the motivation, but it might have been?

          • deiseach

            If you wish to make the accusation of police corruption, please make it.

          • DeeWriteful

            Waterford people are a clever bunch :)

          • deiseach

            I’m the exception that proves the rule. Wait, that’s not right!

          • Philip Giddings

            As an experiment, try listening to a conversation in a room at a Premier Inn by standing in the corridor with the door closed!

            If the porter heard a female voice panting and groaning, that seems consistent with active, aware consent, though by itself it’s inconclusive.

            However, inconclusive falls a long way short of proof of incapacity to consent beyond a reasonable doubt. Every time I read the details of this case, that same phrase jumps off the page and smacks me in the face: reasonable doubt, reasonable doubt, reasonable doubt.

          • john cox

            As indeed does the fact that his first reaction was to explain to the police what happened. Had he instead said he wanted to call his lawyer, his lawyer might well have advised him to say nothing, and if he had, there could never have been any conviction or even any trial, because there was no evidence of penetration.

            Wise people always remember that litigation is not an infallible method of finding the truth. It’s partly a play and partly – far too often -, a game where the better player wins. Evans made a blunder at that point which cost him his liberty.

            It’s also interesting to wonder whether Evans would have been convicted if McDonald had not been put on trial. The state couldn’t seriously have hoped to convict McDonald, and didn’t. But if he hadn’t been on trial himself, and had given the evidence he did – well, in all probability it would have been believed, and Evans wouldn’t have been convicted. The state played well. It’s bad luck for Mcdonald, who was put through the wringer, but them’s the breaks.

          • Jane

            How would the eavesdropper know if the noises were due to pleasure or pain??

          • john cox

            I don’t know; I think some noises one can tell the difference!

            But anyway, putting the eavesdropping evidence at its lowest, the complainant was not unconscious at the time.

          • Jane

            I agree that she was not unconscious but IMO she was probably very tired and practically falling asleep..

            I find it difficult to believe that any female could go from a “cold start” sexually with a man she didn’t know to noisy consensual sex with another stranger some 15 mins later (we know Evans arrived 10 mins after McDonald and I am allowing him 5 mins to blag the key).
            I also find it hard to believe that any woman could have active consensual sex and not know about it the next morning.

          • john cox

            >I agree that she was not unconscious but IMO she was probably very tired and practically falling asleep..

            Well, it was half past four in the morning; I’d imagine they were all a little past their best, yes.

            As to the sexual customs of the young, I feel totally inadequate to hold a view. It’s not what I’d do,but then life has suggested to me that quite a lot of people do quite a lot of things sexually that I wouldn’t do. We are after all considering someone who’d go back to a hotel with a stranger she’d only just met. I don’t find it obviously inconceivable such a person might be up for round two with another stranger, especially if the first one had been disappointing her. But you’d need to study quite a particular population of women to have any worthwhile view at all about the probabilities, I’d have thought.

            >I also find it hard to believe that any woman could have active consensual sex and not know about it the next morning.

            Well, that’s what the defence said, of course. But in general obviously this complainant was in a fairly rare condition, able to walk around the place and do all sorts of things for an hour and a half or so, yet not remember anything afterwards. I have no idea whether such a person would normally remember sex more than pizza-buying, or whether it’s just random.

            If I were on the jury and someone said that in the jury room then all I’d be able to say was that I’d need the evidence of a psychologist about the typical effects of memory loss.

            The jury had a very difficult task; that’s one thing that is clear.

          • Jane

            When I said this ” I also find it hard to believe that any woman could have active consensual sex and not know about it the next morning.” I was perhaps being a bit too discrete. I wasn’t referring to memory loss.

            I will endeavour an explain without being too indelicate.

            When a woman becomes receptive to, and willingly engages in sexual activity certain changes occur to the relevant parts of her anatomy. These changes could be detectable many hours later.
            However, these changes do not need to happen in order for intercourse to occur.

          • EAB

            She had wet herself, do you think she didn’t even go into the shower after waking up in a wet bed? Towels and soap are free and included, even at budget hotels.

          • EAB

            If a woman is turned on it doesn’t take a minute. Did you know some woman actually like the thrill of strangers? Some people even write books and film scripts about this. Shocking isn’t it.

          • EAB

            He was clearly listening at the door because his job is to take care of the hotel and work out if the hotel is being used for legitimate purposes. It was the night, and I’m sure some guests wanted to sleep. If they had been too loud, they would be causing a problem. He didn’t seem to think anything illegitimate was going on which is why he didn’t stick around for long.

          • http://footylaw.co.uk Footy Law Blog

            IF that happened it would be consent. The jury decided that it didn’t happen.

            Evans’ and McDonald’s version of what happened and who said what was not entirely consistent.

          • Philip Giddings

            How much had Ched and Clayton had to drink? How accurately can any of us quote ourselves, even when we were sober? Did Clayton’s account of the woman demanding oral sex etc contradict Ched’s?
            The jury was entitled to conclude it didn’t happen as Ched said – i.e. that he was lying under oath – but in no way could they possibly have had grounds to be satisfied beyond a reasonable doubt that his version of events was untrue, if there was no testimony or independent physical evidence to contradict him.

            Surely this negates your conclusion that Ched’s problem is that he fails to recognize that what he did was rape (however insensitive and ungentlemanly his behaviour – though I suspect this influenced the jury). Ched’s account of events (whether anyone believes him or not) is that she gave him every good reason to believe she wanted sex and at the time was palpably capable of making a choice.

            This in turn negates the premise of your argument that he is irredeemable and dangerous to women, and cannot be rehabilitated, because he thinks it’s okay to go around penetrating them when they’re half-unconscious, and that doesn’t or shouldn’t count as rape.

          • jameslc

            No, once again you fail to understand what the case is about.

            It is not whether the woman was willing, but whether she had capacity (i.e. was legally able to consent).

          • Jane Fae

            no, its not.

          • anneteak

            The jury decided that it didn’t happen but on what grounds?

            He looked shifty? To be a criminal? A liar? He had had stubble?

            What?

          • john cox

            >IF that happened it would be consent.

            No. It would be consent if the woman had capacity to give consent – if she were not too drunk. If, as the trial judge and the CA both assumed, the basis of the jury’s decision was that the complainant didn’t have capacity, then it doesn’t matter what she said. It might have gone to whether Evans had reasonable grounds to believe that she was giving valid consent, true.

            It follows that the jury did not ‘decide that it didn’t happen’. We don’t know what the jury decided. And if they did ‘decide that it didn’t happen’, they shouldn’t have done. There was no evidence whatsoever on which they could have made any decision about what happened in the hotel room. There were two proper courses open to them, one being to believe the only account they had, the other to accept that they couldn’t make any sensible finding about what happened in the room and proceed from there. Anything else is simply making stuff up.

          • Harvardlawyer

            Do you honestly believe that everything a defendant says in court is true? Do you honestly believe that McDonald and Evans had no incentive to concoct evidence? Because if you do then nothing, not even the excellent analysis set out in this blog, will help you.

          • Philip Giddings

            Of course not, but the onus lies on the prosecution to prove beyond a reasonable doubt that the defendant was lying. Motive to lie is not proof of lying.

          • anneteak

            No. I don’t believe what a defendant says

            It’s because there is no alternative account as to what went on in that room – from the young woman.

            The two defendants accounts are the only accounts. And the jury had to have believed that they were both lying.

            If there had been an alternative account, then it could have been examined too.

          • Melia Windsor

            The prosecution tried both men on the basis she could not consent to sex due to her being drunk. If she could not consent to one, how could she to the other? His expectation is totally irrelevant. She was drunk, the same principle should apply.

          • Jane Fae

            His belief (not expectation) is wholly relevant: the crime is committed, or not, by the two men according to whether they had a reasonable belief in consent.

            One individual, based on conversation had with the victim could have formed such a reasonable belief, while the other not.

            The difference, in fact, is not to do with precisely how drunk she was, but how, given their interaction with her, they had tested the proposition that she consented.

            That difference is, at least in part, manifest in the difference between one individual having extensive interaction with the victim before sex took place and the other not.

          • john cox

            >His belief (not expectation) is wholly relevant: the crime is committed,
            or not, by the two men according to whether they had a reasonable
            belief in consent.

            One doesn’t need to consider that issue at all unless there is in fact no valid consent.

            I’d also say that the reasonable belief in consent has to include a reasonable belief in capacity. That is the main point which eluded the Court of Appeal – see their paragraph 20 – and why the verdict was so completely wrong.

        • http://footylaw.co.uk Footy Law Blog

          The verdicts are not inconsistent. The facts are different – as set out in the blog (and addressed by the Lord Chief Justice in the Appeal Court judgment).

          • jameslc

            You don’t understand the issues, so please inform yourself of them before writing an inflammatory blog post.

          • http://footylaw.co.uk Footy Law Blog

            What issues have I misunderstood?

          • jameslc

            I am not a lawyer, but am aware of the case report.

            The main issue that the case is about is whether the woman was, in a legal sense, able to consent to sex.

            The reason that the case was brought was because she said that she could not remember what happened.

            It does not matter, in the eyes of the law, whether she was willing or not-and,if it is true that the woman cannot remember, then she does not know.

            Thus the case depended on expert witness opinion of the woman’s capacity (ability to consent) based on such factors as her behaviour, witness evidence and her state when interviewed by the police the next day.

            Thus, the main issue is determining the woman’s state beyond reasonable doubt.

            In my opinion, it is very unlikely that the experts could, beyond reasonable doubt, estimate the woman’s blood alcohol level and her capacity to consent.

            As if that were not enough, the court (i.e. the jury) then has to decide whether the defendants would reasonably believe that the woman had capacity to consent.

            In other words, a boffin has to decide beyond reasonable doubt that the woman was so drunk as to lack capacity and that this would be obvious to the defendants.

            I would suggest that it is open to question that they could do so.

          • peterdavis

            I remember when I was about 20, one night I got very drunk at home with my then girlfriend, and started being very nasty to her (verbally). Next day she said ‘you were a right bastard last night’. I had vague memories of it, but immediately said, ‘Oh, I don’t remember’. Get out of jail. In her mind I still said what I said, but by ‘not remembering’ I effectively absolved myself of having to justify it or take responsibility. I can well imagine a 19 year-old questioned by the police – ‘what were you up to last night with those two blokes?’….’Oh….ermm…..I don’t remember’. That sounds quite reasonable to me – quite in keeping with human nature. From there, everything escalated out of all control, and embarrassing bedroom antics turned into the ruin of two lives – hers and his.

          • DeeWriteful

            She didn’t know there were two blokes there. You don’t know what they asked her. You are fabricating situations, tying yourself in knots with the mental gymnastics, to defend a convicted rapist and you should be fucking ashamed of yourself.

          • Jane Fae

            nope. the law is not about determining the woman’s state. It is about deciding whether any belief held by Evans as to her consenting was a “reasonable belief”.

            The woman is not on trial.

          • jameslc

            Well, to put it kindly, you are completely misinformed.

            The entire case was about the woman’s capacity to consent (i.e. was she to drunk to consent to sex, regardless of whether she was willing).

            Once that was decided by the jury, the next thing for them to decide was whether the defendants would reasonably have believed that she was unable to consent.

            As I said previously, all of this was to decided on the basis of expert witnesses who claimed to be able to deduce these things beyond reasonable doubt.

            As for your comment about the woman not being on trial-that does not inspire confidence that you have any understanding of the issues.

            Feel happy to argue otherwise, but I won’t waste my time on name calling or anything that does not address the points made.

          • john cox

            >As I said previously, all of this was to decided on the basis of expert
            witnesses who claimed to be able to deduce these things beyond
            reasonable doubt.

            No, it wasn’t, for goodness’ sake. It was decided on the basis of CCTV footage and eye-witness evidence of those who observed the complainant over the hour and a quarter or so before she entered the hotel room. Both the complainant’s evidence and the expert evidence were to the effect that she had not drunk as much as one would expect to cause a loss of capacity, nor as much as she usually did on a night out.

          • john cox

            >nope. the law is not about determining the woman’s state. It is about
            deciding whether any belief held by Evans as to her consenting was a
            “reasonable belief”.

            For goodness’ sake, of course it is. The law is, putting it shortly, that if she’s too drunk any consent she gives isn’t valid. Once the jury considers that she is too drunk, the defendant has a defence if he can then show that he genuinely and reasonably believed that she had validly consented.

          • anneteak

            The ‘facts’ about what went on in the room rest on opinion.

          • http://footylaw.co.uk Footy Law Blog

            Not, opinion, but judgment.

            That doesn’t change the fact that the verdicts are not inconsistent because of the different set of facts in the cases of the two defendants.

        • jameslc

          They are very likely to be inconsistent (not that we can ever know, because the jury don’t give their reasons), but not sufficiently inconsistent for the Appeal judge to overrule them.

          • Philip Giddings

            Appeal judges cannot overrule the original evidence, they can only consider new evidence and new legal arguments.

        • DeeWriteful

          Did you read the post?

          Have you even thought to look up the legal definition of the crime of rape?

          I find it so, so worrying that people will defend a convicted rapist, when they are actually so ignorant to the facts that they don’t actually understand the very basic tenets of the law

  • DM

    Why claim this blog is an unbiased account of the facts when it is clearly written from an anti-Evans perspective?

    Evans’s isn’t claiming sex with a drunken girl isn’t rape, his case is that she was sober enough to consent and that in fact she did explicitly consent.

    Furthermore compare the spin you put on his low chances of having his verdict quashed via the CCRC and the emphasis you put on the fact the Attorney General may investigate the Pro Evans website.

    • http://footylaw.co.uk Footy Law Blog

      1. Where do I claim that this is an unbiased accounts of the facts?

      Clearly any account which looks at things from a legal perspective will come from an “anti-Evans perspective” as you put it; because in law Evans is a rapist. The law on rape is clear despite Evans’ protestations.

      In exploring the legal side of the case Evans was convicted in a court and had two requests for appeal rejected. In stating and explaining that, it clearly is not going to come from Evans’ perspective.

      This blog is biased – it is biased in support of the law. If you’re looking for something different read an ethics, morals or philosophical blog. If you’re so convinced that this blog is wrong in law please point me to any blogs exploring the case from a legal perspective that supports Ched Evans perspective.

      2. Evans is indeed stating that sex with drunken girls isn’t rape. From his own website: “As this case revolves around the issue of intoxication and consent, it should be noted that it is established in the case of R V Bree that drunken consent to sexual intercourse is nevertheless consent in the eyes of the law.”

      What the website doesn’t go on to say is that this principle is qualified and was explored by the trial judge and the Court of Appeal and is what the jury was asked to base their decision on.

      3. I have put no spin on the low chances of a successful outcome for Ched Evans’ reference to the CCRC. The figures are there for all to see and, as stated, he needs to show “substantial new evidence”. Disagreeing with the jury’s verdict isn’t “substantial new evidence” and the case has already been considered by four Appeal Court Judges including the Lord Chief Justice of England and Wales. That isn’t spin. That’s the law.

      As for spin, you state: “the emphasis you put on the fact the Attorney General may investigate the Pro Evans website.” This is spin.

      It isn’t a “Pro Evans website”. It is Ched Evans’ own website. And it isn’t the case that the Attorney General “may” investigate the website. The Attorney General is investigating the website.

      • DM

        1. The title of sifting facts from fiction should mean it is all fact based, not personal opinion/fiction.

        You obviously have no understanding of the law or the justice system. The legal perspective cannot be pro or anti Evans, it simply decides whether he is guilty or not guilty and if appropriate a sentence and then release date. For the record In the eyes of the law he is now free to work in any non-restricted job.

        2. His defence was not that it is not rape if a girl is drunk. If you believe that you are a buffoon. His defence was she was drunk but she consented. The point you make supports that defence. Ultimately the jury believed that she she was so drunk she couldn’t have consented. Neither of us will ever know the truth but I don’t dispute the verdict.

        3. So you agree there is as much doubt as to whether the website is illegal as to whether the CCRC will support Evans? For the record there is an explicit note on the website that it is not Evans’ personal website, sounds like you couldn’t even be bothered to read it all before quoting from it.

        • http://footylaw.co.uk Footy Law Blog

          The blog is fact based. If you can point out any inaccuracies please do so. I would only be too happy to not only correct such “fiction” but also highlight as a footnote that I have done so.

          As for opinion; all law is opinion – that’s why you usually have two lawyers in a court room arguing their opinion of the law. Then a judge has to make a decision as to which of their opinions accords more closely to the law as they understand it.

          You state that “The legal perspective cannot be pro or anti Evans, it simply decides whether he is guilty or not guilty.” I agree. It has decided that he is guilty.

          What I meant was that any exploration about that from a legal perspective may appear to be anti-Evans because all of the court judgments have gone against his arguments.

          You are right to say that he is free to work in any non-restricted job – and the blog states this unequivocally in the section that deals with him having served his time.

          To save you scrolling back up, it states: “There is no law or any rules to prevent footballers from returning to their profession after serving a sentence. There are numerous cases where this has happened.”

          But it goes on to say that it is equally true that nobody has a legal right to return to any job or profession. That is also law.

          If a person is banned from driving for four years after being convicted of drink driving; he is entitled to return to work as a professional driver after that ban and any sentence has been served.

          However, even though he has a legal right to seek employment in such a role; he can be frustrated by, for example, the higher insurance costs that any employer would have to pay.

          And an employer would have the right to consider whether it is appropriate to employ such a person – the conviction would remain on the driving licence for 11 years – precisely so that would-be employers can decide whether they want to employ such a person.

          Employment law in England and Wales allows employers to consider previous convictions unless they are spent. Ched Evans’ conviction will never be spent.

          This is the point that is being made in response to those that say “he’s served his time he can return to work”. He can – but it is not an entitlement and people are entitled to argue a contrary position.

          • DM

            I don’t see any major inaccuracies I just
            think the general tone and things you omit makes your blog quite biased which
            doesn’t sit well with “sifting fact from fiction”.

            For example you say “His defence isn’t that he didn’t do what is alleged;
            but rather that what he did do should not be classed as rape. The law, however,
            is what the law is; not what criminals think it should be.” which
            erroneously suggests that he agrees he did rape the claimant as laid out in the
            Sexual Offences Act.

            You then provide some statistics about the probability of the CCRC putting
            forward his case to appeal and say it’s difficult to see what new evidence he
            can put forward, however you don’t mention that the CCRC review any new
            evidence as a first step before agreeing to progress to the more formal review
            which Evan’s case has now gone to.

            Anyway, it’s your blog and you can write what you like, I just feel you
            shouldn’t portray it as an objective piece as there are lots of facts you have
            chosen to leave out which don’t support your opinion, however all in all it was
            a well written piece I just didn’t agree with half of it!

          • http://footylaw.co.uk Footy Law Blog

            The CCRC haven’t passed Evan’s case for a more formal review. It is the initial review that they are currently conducting.

          • DM

            There you go again being misleading or simply not understanding what you claim to be the “facts”.

            Read the CCRC FAQs and see how they work. They do an initial review of the case and can reject at that stage if they feel there is not enough new evidence to proceed. Evans’ case has passed that stage and has been fast-tracked to a case reviewer. That does not mean it will be referred to the Court of Appeal by a Comissioner but it does suggest the new evidence isn’t as weak as you suggest.

            Couldn’t find the direct quote from the CCRC but this article published in the Guardian specifically quotes them that the review is past the initial stage.

            http://www.theguardian.com/society/2014/oct/18/legal-watchdog-fast-tracks-ched-evans-rape-inquiry

          • http://footylaw.co.uk Footy Law Blog

            I’ve now found news reports from the time and the CCRC spokesman did say that they have looked at the application and decided they needed to take a closer look.

            In other news reports at the time, however, the CCRC spokesman was clear that that the decision to fast track the consideration was not based on a consideration of any evidence submitted to it; as it was the review that they are now undertaking that would do this.

          • DM

            Can you provide a direct quote from the CCRC stating they haven’t considered any of the new evidence or have you just made that up?

            The decision to fast-track the case is also seperate to whether the case gets past the initial review. The case has got past the initial review, which as per the CCRC FAQs on their own website includes a review of the new evidence. You said it hadn’t got past the initial review, you were wrong!

            Would you like to clarify your blog to include the “fact” that although you might find it difficult to see what new evidence there could be the CCRC have seen enough to justify getting past the initial review. Maybe you could include some statistics on how many cases get rejected at the initial review stage….

          • http://footylaw.co.uk Footy Law Blog

            The CCRC do not provide those statistics.

            No, I will not clarify what I have written in the blog with regards to the CCRC as that remains correct. I was wrong in the comment and I have acknowledged that.

            The CCRC said at the time that the decision to fast track the review was based on a application from Ched Evans’ lawyers and in line with their published criteria. They said that this was not an indication as to the strength or otherwise of the application as this could only be decided once the review had got underway.

            I have asked, through a Freedom of Information Act request, why specific aspects of their published criteria made this case appropriate for fast tracking. They have not replied within the statutory deadline and I am chasing a response.

        • http://footylaw.co.uk Footy Law Blog

          Sorry, I missed your third point off my reply.

          I do not agree that there is “as much doubt as to whether the website is illegal as to whether the CCRC will support Evans?”

          We do not know whether the CCRC will refer Evans’ case to the Court of Appeal. We do know that 98 per cent of cases submitted to the CCRC are not referred on; and that for them to do so, Evans’ lawyers would need to have provided “substantial new evidence or new legal argument.”

          I have seen nothing on the website to say that it is not Evans’ personal website.

          In any event, Ched Evans is the registered website owner.

      • peterdavis

        Why do you not mention the following from his website?
        ”Ched stated that the complainant asked him to perform oral sex upon her by telling him to “lick me out”. He did so and then followed this act by having intercourse with her. This was all corroborated by Clayton. Both men stated in evidence that the complainant was verbally encouraging Ched to have more vigorous sex with her by calling out to him on numerous occasions to “F**k me harder”.’
        The site claims this is one of the ‘Key and Undisputed Facts’. If so, would you agree it implies consent? Or is his site making things up entirely?

        • http://footylaw.co.uk Footy Law Blog

          I don’t mention it because that was evidence that was put to the jury who rejected it.

          This blog does not seek to re-try the case. The trial has taken place and the verdict reached.

          While it might be a “key and undisputed fact” that “Ched stated” that this is what happens; it is not a “key and undisputed fact” that this is actually what happened.

          That’s what juries are for.

          • peterdavis

            So the blog seeks only to offer a justification of the verdict, and a rejection of other factors that might have led to a miscarriage of justice. Not a very enquiring approach really, is it?

          • http://footylaw.co.uk Footy Law Blog

            The blog seeks to explain the verdicts and decisions that have been reached.

            It would seek to look at any other evidence offered; but none has been (other than to the Court of Appeal; but that was rejected by the Court of Appeal as the blog made clear).

            What the blog does not do is to seek to re-try something that has already been tried. The law doesn’t do that and neither does this blog.

          • peterdavis

            Right but of course people are entitled to speculate, and sometimes from speculation new ideas arise. I know your job is to say ‘the science is settled, go away you rape deniers, nothing to see’ – but questioning minds might not agree.

          • john cox

            You don’t know whether the jury rejected it or not; as you rightly said, juries don’t give reasons.

            All we know is that both the people who were present swore that that’s what happened.

          • http://footylaw.co.uk Footy Law Blog

            Both also swore that they did not ask the victim if Evans could join in.

            Both said the other asked; but both denied asking it.

            The jury considered the evidence – all the evidence, not just the selected highlights promoted by Ched Evans – and concluded that the case against Evans was proved beyond reasonable doubt.

          • john cox

            True, but so what? As you say yourself, there’s no doubt that their evidence, taken together, disposed entirely of the issue of consent (as opposed to capacity). If believed, of course.

          • Philip Giddings

            Who among us can quote ourselves accurately from the night before, and remember who said what, even if we were sober?

            Ched told the jury the woman demanded oral sex etc, as we know. The jury disbelieved his story but if he was lying, why bother telling an additional lie that Clayton asked her if she wanted sex with him? And why lie about that, if the rest of his story was true?

            I believe both men maintained that she demanded sex? Whether the truth or a lie, I’m struggling to find a sinister reason why each of them would testify that the other asked her for sex, having both testified that she herself asked each of them for sex.

          • Jimmy

            Essentially then, they chose to not believe him. If his version of events was proven true, it would not be rape. This is what annoys me when people patronose me saying I don’t know what rape is.

  • mrs doyle

    amen

  • peterdavis

    From the Ched Evans website, the following is cited as a ‘key and undisputed fact’.
    ‘Ched stated that the complainant asked him to perform oral sex upon her by telling him to “lick me out”. He did so and then followed this act by having intercourse with her. This was all corroborated by Clayton. Both men stated in evidence that the complainant was verbally encouraging Ched to have more vigorous sex with her by calling out to him on numerous occasions to “F**k me harder”.’
    This strongly suggests consent. Do you dispute it, in which case has his site fabricated this information?

    • Graeme s

      You have two comments on your disqus profile both arguing for the rights of footballers convicted of rape. Somehow I think you’re not too impartial here…a bit like the so called ChedEvans website.

      • deiseach

        Which has nothing to do with Ched Evans, no sirree.

        • david

          Agreeing to go to a hotel room does not constitute consent to sex. Sex can only be consented to at the time of sex, as women have the right to change their minds. Obviously consent to sex does not have to be verbal. As I understand it, there were 10 minutes between her being capable of agreeing to sex with Clayton and then Evans having sex with her. There is no evidence that she ate or drank anything during those 10 minutes. Therefor if she was capable of giving consent to Clayton, she was to Evans also. The jury and judge seem to miss these very obvious and logical facts. I do not understand why.

          Also the hotel video evidence was not admissible in court. If it had been, I think the jury would be far less likely to convict Evans. In the video the girl walks very well with no wobbles, and bends down perfectly with no wobbles. This is very different from a girl described as lying in the street and being stepped over.

          Remember that it has to be proved beyond doubt that consent wasn’t given, or that she was too drunk to give consent. There is huge room for doubt in the evidence that is here and elsewhere.

          Maybe there is more evidence, but considering the high profile and press coverage of the trial, all the evidence and arguments of defense and prosecution should be in the public domain.

          Juries make mistakes. Judges make mistakes. I was on a jury where the judge in my opinion subtly tried to sway us to convict. We unanimously and quickly did the opposite. If I was correct in my reading of the judge, either he or we made a mistake.

          I really do not understand how the jury convicted Evans and not Clayton.

          I am also particularly concerned as it is widely reported that it is extremely difficult to get rape convictions and I have some experience of this myself with women I have supported. I have always wanted something to change in favour of women who have been raped and sexually assaulted. This case, as I see it, with the evidence given here and elsewhere, is not the change I was hoping for.

          • anneteak

            I began by being entirely sympathetic to the young woman.

            But now I’m not so sure, as its as other people have said .. The absolute proof of no ‘reasonable doubt’ doesn’t seem to be there.

            You state:

            ‘ But such a doubt does not arise with Evans. The victim did not go back to the hotel with him. The text message (From McDonald, not the victim) merely said that McDonald had “got a bird” – not that the “bird” was inviting Evans to join them. Evans lied to the receptionist to get a key to the room. He didn’t knock the room door and wait to be invited in; but he let himself into the room where (if you accept his version) he must have known that sex was likely to be taking place. And he would have known how drunk and vulnerable the woman was – he had to step over her at the kebab shop’

            How did Ched Evans know that she was the same ‘bird ‘ who had fallen in the shop? Because McDonald doesn’t tell him so.

            I haven’t seen the kebab shop cctv so did he stop and get a close look at her face?
            Her dress? The statement presumes that he could identify her in a presumably dark room with no clothes on , or partly hidden by a sheet.

            If he arrived so soon ( 10 minutes?) after the pair, could he have absolutely assumed that they were already having sex ….and not just eating the remains of the pizza for instance?

            Because that time seems quite short for a ‘seduction’, unless the woman was either very keen – or incapable.

            Logically if she was incapable, the McDonald must be guilty too.

            If Ched Evans had been intent on sex with ‘a bird’ , as the statement presumes, surely he would have told the taxi driver to go?

            Footballers are often keen to embarrass their mates. There is no evidence that he was intent on rape, or even sex.

            He could of just have been trying to wind up his mate, which seems more likely – if the taxi was still running.

            As for what happened in the room. Who knows?

            The jury may have judged it proven but I would have had reservations if I’d been on that jury and I would have had to acquit him. And being a woman who thinks rapists should get longer sentences, I’m rather surprised to find myself in this position.

            I haven’t read the entire trial, so this information might be wrong. Is there anywhere where it can be read?

            …I may change my mind again.

            Difficult to post so Apols for any mistakes.

          • peterdavis

            You make some good points Anne, which is why I also question the whole thing. Having been down Bigg Market in Newcastle many times I’m well aware of the level of raucous,risky sexual action that goes on.

            It sounds quite plausible that Evans barged into the room, to embarrass his mate. And in his inebriated state decided….’corr she’s a bit of alright can I have some too?’ And she in her drunken state said ‘yeah…f**k it why not?’ And off they went.

            Especially since she never went to the police to complain of rape, only to try and find her handbag. Had she not lost it, maybe the whole thing would have passed by as a.n.other night of seedy small-town sex, and two lives would not now be in tatters.

          • anneteak

            Thanks.

            But I’ve read that…

            It was the trial, not the appeal I was looking for.

            Other things that don’t quite figure are the alcohol results, the DNA results and the missing communications from her to her friends….the scrubbed Facebook.

            Overall it just sounds like a drunken mess. He may have raped her but the evidence is just not solid enough to convict.

          • peterdavis

            Thanks Anne.

            The rape, as I see it, depends entirely on her ability to consent. And I am still at a loss how to define that.

            I found a quote from a BBC article in 2007 where Sir Igor Judge, Lady Justice Hallett and Mrs Justice Gloster stated:

            “However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so this would not be rape.”

            I don’t know if things have changed since then. If not, how on earth do you determine this when the woman claims to remember nothing?

            It is also possible he just forced himself on her and raped her, yet weird that if he did he is so adamant about his innocence, despite it being a far harder road to go down, rather than just apologize and try to get his job back.

          • anneteak

            I have to say:

            ‘Well he would, wouldn’t he’
            to continuing to claim his innocence,

            And I believe he is a somewhat dim footballer who was badly advised after his release, compounding and exaggerating public opinion against him.

            But the essence of the case always gets back to how drunk was she …and did she say yes or not.

            And that can’t be proved either way. The judgement is founded in what’s most likely ….but If that was the only criteria, we would all be able to predict the winner of the 3.30 at Kempton Park.

      • peterdavis

        Thanks but that doesn’t address my point. If she did say those things, it might imply consent in this case. You can have your own opinion, but not your own facts, as they say.

        • Julie

          I disagree. The words uttered, if true, may or may not imply consent. It depends whether the person has capacity to consent. A person who lacks capacity cannot consent in law, whatever they say.

          • peterdavis

            Meaning he held a gun to her head and made her say the words? All I can assume you mean is that she was enjoying the sex but was too drunk/stoned to really know what she was doing. I doubt she’s the first person to have done that!
            In which case shouldn’t she take equal responsibility with him, for an inebriated sexual encounter that didn’t do either party any good?

          • Julie

            Apologies I was trying to formulate a legal argument which you don’t seem to understand. In law people must have legal capacity to consent to anything. There are specific criteria which govern who does and who does not have capacity and you may wish to look over them. ‘Too drunk/stoned to really know what she was doing’ would confirm an unequivocal lack of capacity in English law. If a person lacks capacity (has all their faculties in lay terms) any consent they give is invalid.

          • peterdavis

            So Julie does that mean every time people get drunk and have sex it’s rape? And if not, what is used to judge? You will surely agree that many times, strangers get drunk and have sex together, which they often regret later. What is the defining characteristic of this incident, that makes it differ from other incidents of drunken sex which are not seen as rape?

          • Julie

            Clearly there is a threshold and where that lies is up to the court to decide. A woman doesn’t have to be unconscious to lack capacity. Anyone engaging in drunken sex could be charged with rape if a charge is levied and the drunkeness is significant enough to have passed that threshold. In this case I think her stumbling, twisting her ankle, slurring, vomiting and soiling herself were accepted as clear evidence she was too drunk.

          • peterdavis

            So how come she wasn’t too drunk to consent with McDonald?

          • Julie

            I wasn’t on the jury but I suspect that she probably was too drunk to consent to Mr McDonald too but the fact she met him earlier and went with him casts reasonable doubt over a conviction toward that defendant. It isn’t right, a woman should have the right to be anywhere she chooses with a man and sex not be assumed, but her going there with him makes a rape charge difficult to prove.
            Things are changing, if any good can come of this its that young men will take a number and call the next day, and not seek to exploit drunkeness to get some immediate ‘action’.
            And of course, that could still be argued to be rape. Difficult for a woman to rape a man due to physiology though.

          • peterdavis

            Well, when you say ‘a woman should have the right to be anywhere she chooses with a man and sex not be assumed’ – how do you know she didn’t want sex? Young women have a pretty strong sex drive too.

            Why must we assume men ‘exploit’ the situation to get ‘action’, as if women don’t enjoy it too? I’ve met lots of women that have had drunken sex many times and are quite happy with themselves. Why do we assume men are the ‘predator’ and women the ‘victim’, in what are often situations of mutual enjoyment?

          • leroy

            ok but if she was too drunk to consent, and the jury was certain enough of that fact to convict evans, then how does her “going with” mcdonald change anything? if you can be so drunk that you can consent to sex and it doesn’t matter what you said, can’t you also be so drunk that you can decide to go with someone to a hotel and that doesn’t matter either?

            i realize you say this isn’t right. but this is all a lot of us have been saying, that the two verdicts don’t really square if you assume that “too drunk to consent” was the basis for evans’ conviction. and we tend to get scolded for questioning a jury’s judgment. but when push comes to shove you’ve just done the same. i don’t mean that in an accusatory way, i just, this really doesn’t add up for me.

          • Philip Giddings

            The jury concluded that Clayton had reasonable belief that she consented despite being too drunk to consent, and Ched did not have reasonable belief. However, historical belief or consent is irrelevant. Clayton can have all the reasonable belief he likes when they meet outside the kebab shop; but that counts for nothing at the time they have sex. Which, of course, brings us back to the illogicality of the jury deciding he reasonably believed (however mistakenly) that the same woman in the same state at (almost) the same time capably consented to sex, but Ched should have known she was too vulnerable and impaired to consent.

            BTW, if one can demonstrate that a trial verdict was unjust, and there is no significant new evidence, can one petition the Queen for a Royal Pardon?

          • Julie

            I’m not saying I question the jury. I’m saying they had sight of all the evidence and thus reached different conclusions. Seems to me though that they may have accepted that she was less drunk when entering the taxi and going to the hotel room that she was when Evans busted into the room. The evidence we know of backs this up, Mr McDonald himself states that around the time he left the room (when Mr Evans was raping her) she had deteriorated to become ‘sick’ and the night receptionist should ‘watch out for her’.

            The case against Mr McDonald throws up exactly the issues that so many rape cases do and reasonable doubt is easy to cast with the sequence of events prior to her arrival at the hotel. It doesn’t mean Mr McDonald didn’t rape her, it means reasonable doubt.

            To be honest though, without full sight of the evidence presented to the jury it’s difficult for anyone not involved in the case to make a judgement. But the evidence that is in the public domain backs up the verdicts IMO.

          • Philip Giddings

            On Clayton telling the receptionist she was sick…

            He knows his friend is raping a woman and, instead of intervening directly, he unashamedly allows an appalling crime to continue, and asks the receptionist to give her post-rape care and attention (thus potentially incriminating his friend)?

            Another possible explanation is that she was highly aroused and wanted sex despite the “hangover effects” of heavy drinking beginning to kick in; and Clayton felt it wasn’t his place to interfere with two consenting adults having sex. He just wanted to make sure the staff checked her to see if she was okay after he and Ched had both left her.

            To motivate the staff to look after her, he may have deliberately exaggerated or even concocted her need for special attention.

            But none of this is consistent with Clayton having a guilty conscience about anything he witnessed. If you think your friend is doing something wrong, or even questionable, to a woman, you don’t go to reception and draw their attention to her, inviting hassle or trouble.

          • Julie

            Firstly the argument about Clayton not wanting to ‘incriminate’ his friend or ‘having a guilty conscience’ is not plausible since both men do not accept that a drunken consent may not be valid, resulting in an instance of rape. They both do not accept and show extreme ignorance of the law, so I’m quite sure neither would see they had done anything wrong, thus would not feel a need to avoid incriminating each other or having a guilty conscience.

            Not sure what you mean by ‘hangover effects’? She was either highly intoxicated or not. If she was not and she was not sick, what possible reason could there be for Mr McDonald to state this to the receptionist? ‘Deliberately exaggerated or concocted her need for special attention’? Why would he do that if she was not actually sick? Why would a mildly drunk, adult woman in good health need any intervention from a hotel night porter?! That’s nonsense I’m afraid.

            IMO that statement is key to why Evans was convicted. Third party testimony confirming she lacked capacity around the time of Evans entry to the room and sexual activity.

          • peterdavis

            Sir Igor Judge, Lady Justice Hallett and Mrs Justice Gloster, in 2007:

            “However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so this would not be rape.”

            Has this changed?

            reference:
            http://news.bbc.co.uk/2/hi/uk_news/6497889.stm

          • Julie

            No it hasn’t and the key words are ‘nevertheless remains capable of choosing’. The judge in the Evans case confirmed a complainant need not be unconscious to lack this capability. A ‘dim view of reality’ would also suffice.

            How does the Sexual Offences Act 2003 define capacity to consent to sexual relationships?
            The Act states that “a person consents if he/she agrees by choice and has the freedom and capacity to make that choice”. The Act also states that an individual lacks capacity to choose if they lack sufficient understanding of the nature of the act of the reasonably foreseeable consequences of what is being done or for any other reason.

            The legal definition of capacity is covered in the Mental Capacity Act 2005, from a medical standpoint but the principles are the same.

          • john cox

            >The Act also states that an individual lacks capacity to choose if they
            lack sufficient understanding of the nature of the act of the reasonably
            foreseeable consequences of what is being done or for any other reason.

            That’s not capacity to choose but ‘ability to refuse’ for the purposes of section 30 ff (ie persons with a mental disorder), isn’t it?

          • anneteak

            If a woman said ‘yes’ ….and they hadn’t tested her alcohol level, how would two rather dim footballers be able to distinguish that she really meant ‘ no’ – under the law, as you put it.

            You seem to think that they should have been clued-up lawyers, who knew the finer legal points of consent.

          • Julie

            Ignorance of the law is not a valid defence, in any crime not just rape.

            In addition, the fact she was on the brink of becoming ‘sick’ as Mr McDonald testified, I’d have thought her vulnerability would’ve been obvious.

            If any good can come of this case it’s that young men will now be more aware that a drunk woman may not be fit to consent and the potential consequences.

          • anneteak

            Where did I state that ignorance of the law was a defence?

            That’s the oldest tenet in the book.

            I stated that when a woman says ‘yes’, that normally means ‘yes’..unless you are arguing the opposite too when if a woman said ‘no’ that ould mean ‘yes’ too.

            And that is dangerous ground.

            And this woman is saying ‘yes ‘ to you…

            Young men, and footballers in particular, will now realise that drunken escapades in hotels can have serious consequences.

          • Philip Giddings

            I’m only speculating but it isn’t nonsense if Clayton doesn’t want her to be neglected in case she needs helpful attention later on – just like the concern millions of other night-clubbers might show towards their casual sex partners after a night of drunken consensual sex in which no one was too drunk to consent.

            I repeat, Ched’s case is not that he doesn’t realise women can be too drunk to consent, but that the woman in question gave him valid reasons to believe she was palpably capable of consenting to sex at the time and so consented. The jury disbelieved him on the basis of no evidence that anyone here has yet presented or cited.

            Because jury deliberations are secret, they can convict people according to whether they choose to believe them, not, as they are supposed to, according to whether the case against the defendant was proven beyond a reasonable doubt.

          • http://footylaw.co.uk Footy Law Blog

            Ched Evans’ case is exactly that women can’t be too drunk to consent.

            On the homepage of his website, he says: “As this case revolves around the issue of intoxication and consent, it should be noted that it is established in the case of R V Bree that drunken consent to sexual intercourse is nevertheless consent in the eyes of the law. This does not mean that if a person is unconscious through drink or drugs it is acceptable to have sex with that person but rather, where an intoxicated person is functioning and able to make conscious decisions at the time of intercourse and then subsequently regrets that decision and decides to make a complaint of rape, her self-inflicted intoxication ought not to be considered as relevant to the issue of consent.”

            That is not what the case of R v Bree said – as the trial judge said: “there are various stages of consciousness, from being wide awake to dim awareness of reality. In a state of dim and drunken awareness you may, or may not, be in a condition to make choices.”

            That summary was held to have “amply encapsulated the concept of the drunken consent amounting to consent” principle by the Court of Appeal.

            That is very different from what Ched Evans says on the website.

          • john cox

            It’s not *very* different. I don’t see much wrong with the website summary. Which, anyway, will of course have been written by his solicitors and not him. It’s obvious Evans doesn’t have the brains to understand the relevant law – quite a lot of posters on here don’t understand it either; why should we expect him to?

          • anneteak

            How do you know he ‘busted into the room’?

            Extrapolation and exaggeration.

          • Julie

            We know from his testimony. Exaggeration?! Could call it breaking and entering if you prefer (possible with a key if you shouldn’t be in possession of said key).

            What would you call it if you were in a hotel room and a strange man, came into your room uninvited, unexpected and using a key obtained by deception?

          • john cox

            > It doesn’t mean Mr McDonald didn’t rape her, it means reasonable doubt.

            By the same token, a conviction doesn’t mean Evans did rape her; it just means the jury thought he did.

            I don’t think your construction is at all likely, for the simple reason that it isn’t the Court of Appeal’s, nor the trial judge’s. The barristers who made submissions to the CA will have been at the trial and will know how both sides put their cases, so will the trial judge. They both thought that the basis for the jury’s decision was that the complainant was incapable throughout.

            In my view that is a completely indefensible construction for the reasons I’ve given elsewhere, and yours is better than theirs, albeit I personally would certainly not have gone along with it on the basis of the evidence we know of.

          • leroy

            also note that the author of the post doesn’t seem to have quite the same position on drunken consent and what it means that you’re putting forward here. in several of the above comments they say that if evan’s account of her statements is in fact true, then that is consent and he has to be found not guilty, regardless of how drunk she was. you seem to be arguing that she could have said those things and evans could still be guilty.

          • john cox

            >Difficult for a woman to rape a man due to physiology though.

            Well, if by “physiology” you mean that women don’t have penises, then yes, since rape is penetration by a penis.

            >a woman should have the right to be anywhere she chooses with a man and sex not be assumed,

            This is daft. Obviously she should. And does. However if a woman is alone with a man and sex occurs, then no power on earth can say beyond reasonable doubt whether or not there was consent (absent physical evidence). That doesn’t mean ‘sex is assumed’. It just means that society shouldn’t be imprisoning people without the elements of the relevant offence being proved beytond reasonable doubt.

          • Philip Giddings

            Rape is penetration, including with an object; therefore a woman can rape a man or another woman. But yes, I wouldn’t like to take a guess at how many night clubbers have casual sex whilst both are too drunk or stoned to know (or care) what they’re doing. Yet the woman is 0% responsible and the man is 200% responsible.

          • http://footylaw.co.uk Footy Law Blog

            That hasn’t been the case in English law for more than 10 years.

            Under the Sexual Offences Act 2003, rape is penetration by penis of the vagina, mouth or anus (section 1 of the Act).

            Any other form of penetration (by another body-part or any object) is sexual assault by penetration (section 2 of the Act).

          • Philip Giddings

            Sorry. I stand corrected. So the rape law is still inherently sexist.

          • john cox

            >Out of interest, if a woman forced herself on a man who was over the ‘threshold’ is that also rape?

            No, it’s an offence under section 4. Rarely if ever prosecuted, mind. Men seem to get over having sex when they were legally too drunk to consent more easily than women do.

          • john cox

            Sorry, where does ‘vomiting’ come from? I haven’t seen that in the evidence. Nor have I seen any evidence of slurring her words – the expert testified (slightly surprisingly) that the amount of drink taken might be expected to produce it, but I haven’t noticed any witnesses saying they observed it.

          • http://www.minimanager.co/ Ix Techau

            Keep in mind that what you are saying here is that Ched Evans, in a drunken state, should have been able to determine that a drunk girl asking him to have sex with her, is somehow slightly above some legal limit of capacity to consent.

            Also keep in mind that McDonald, also in a drunken state, also had sex with the woman, who, according to the legal definition, had no capacity of consent.

            If she didn’t have capacity to consent to sex, then, by definition, both McDonald and Evans raped her. But McDonald walked.

            So Evans’ crime was to stay slightly longer in the hotel room than his friend. If they had left at the same time, neither would have been convicted.

          • Julie

            I’ve not seen any evidence that either man was seriously drunk. Can you provide a link or reference?

            McDonald walked because, in my view, the jury accepted that she was less drunk when agreeing to go with him and that casts reasonable doubt. They also, in my view, accepted that she had deteriorated when Evans was with her.

            But no you are incorrect, Evans crime was not staying in the room longer, it was rape. If Mr McDonald and the receptionist hadn’t testified as to her deterioration after entering the room it might’ve meant a rape charge would’ve been harder to convict, not that a rape didn’t occur.

          • anneteak

            She can it have agreed to ‘go with him’ before she got to the hotel bedroom.

            Unless she agreed to sex before they hit there.

          • anneteak

            Apols.. ‘got there’.

          • Julie

            As I’ve stated before, we can’t know why she went with McDonald but it would appear that the jury accepted she was doing so to possibly engage in sex and at that stage she had capacity to exercise that choice. Her actions may be construed as implied consent to him, thus the jury must’ve had reasonable doubt. It doesn’t say she did or didn’t consent, merely that they can’t conclude either way. So no conviction.

    • http://footylaw.co.uk Footy Law Blog

      It is a “key and undisputed fact” that “Ched stated” that; but it is not a key and undisputed fact that this is actually what happened.

      It was put to the jury who rejected it.

      You seem to want to re-try the case. The case has been tried and a verdict reached.

      • Philip Giddings

        Doesn’t it concern you as a law student who must have a passion for justice, that verdicts on re-examination of cases are unjust, but the law does not provide for a retrial or reconsideration of the original evidence? Fundamental law reform needed urgently?

        • leroy

          it can be frustrating in cases where a real injustice seems to have occurred, but if you offer wholesale retrials without new evidence, everyone will want one. at some point you have to have some basic confidence in the system.

          • Philip Giddings

            Obviously there needs to be a thorough case review and a prima facie case for a retrial – that would filter out hopeless and trivial cases.

        • http://footylaw.co.uk Footy Law Blog

          Not at all.

          The courts can overturn jury decisions if they are perverse – but there are reasons why the facts of the case are generally left to the first jury.

          The biggest reason is that before and during a trial, witnesses are not supposed to talk to each other (and are not supposed to read reports of the trial until they have given evidence. They are also not allowed to sit in court to hear other witnesses giving evidence.

          This is to ensure that evidence is fresh and is delivered to the jury uncorrupted by being tainted or influenced by what other witnesses have said.

          After a trial, witnesses are going to discuss with other witnesses, they are going to read about it and cases will be dissected and discussed.

          This affects the evidence given in any subsequent re-trial – it is rarely, if ever, the same as that given in the first trial.

          For this reason, it is appropriate that in normal circumstances, the evidence is given once and a jury is asked to reach a decision.

          • Philip Giddings

            Thank you for explaining. Of course there is an inherent problem with “tainted” juries and witnesses – although there are some circumstances in which retrials are allowed to proceed. It is even arguable that the media demonisation of Ched was – and still is (though the tide may at last be turning) so ferocious and malicious that a future jury could only be LESS tainted than first one.

    • anneteak

      Nothing which happened in the room is certain.

      It might as well be forgotten as an arguement either way because it’s not even
      ‘he said / she said’.

      No recordings, no tape, no DNA evidence, no bruises, or marks to determine who might be telling the truth.

      The only evidence is peripheral. And there’s not a lot there.

      The tapes, the timings and the physical evidence do not certainly point one way or the other. So it seems only to be a question of belief by the jury.

      It’s such a serious crime I think that he should of been given the benefit of the doubt…unless I’m missing something which the jury saw. I’d like to know what decided them.

  • leroy

    you write –

    “Evans convicts himself with his own testimony: he claims that the victim consented. Did she consent to him lying to get a key to a hotel room and letting himself in so he could get a look at her at a time when he thought that she would be naked? No. By his evidence he spoke to her for the first time in the hotel room. Where was the consent to be ogled in the nude?”

    this seems like an intentional missing of the point. was evans convicted of ogling her in the nude? or of his friends videotaping them through the window? if those are crimes (and they do at least make him a bit of a jerk) they’re not as serious as rape. he was convicted of raping her. and his testimony was that she consented to have sex with him.

    you yourself say in these comments that if his testimony is true (about the statements she made re: licking-out &c) then he is innocent. do you claim both that and also that he convicts himself with his own testimony?

    and that paragraph is the peak of your whole argument in that section. to me it’s not persuasive.

    you say that there’s reasonable doubt in mcdonald’s case because she willingly went back to the hotel with him. but i don’t really see how there isn’t reasonable doubt in evans’ case as well. what is he even supposed to have done? had sex with her while passed out? or sort of lolling semi-consciously and mumbling? or she said no and he forced himself on her anyway? or what evans and mcdonald say could be true. no one even knows, do they?

    how could the jury even claim to know? the victim says she doesn’t remember anything. there’s no useful physical evidence. evans and mcdonald say what they say, which of course is what they would say if it was true and also if it wasn’t, so it doesn’t really provide much information. then you have the night porter, whose account if anything seems to support evans and mcdonald’s account more than anything, in that he said he heard what sounded like willing female participation in sexual activity.

    so that’s all you have. how do you get “no doubt at all that he’s definitely guilty” from that?

    and i realize this is all second-guessing and mind-reading of the jury. but it seems like that’s what this is all really about. a lot of people seem like they’re just saying, if a jury says something, we have to accept that it’s true. but there’s also a reason trials are public.

    i’m an american who wasn’t following football in 2012 so i’d never even heard of ched evans before this week. and i’m generally a hopeless leftist, i recognize that lots of unfair and awful things historically have happened and continue to happen to women in the area of rape and the law, that rape culture is a real thing, etc. i’m also a dude, of course. but i’m not one of those dudes who go around arguing for every rapist. bill cosby is an asshole. maybe i’m way off today for some reason. but looking into the case i’ve found that it’s… not nearly as clear-cut as i thought it would be from the way the headlines were talking about it.

    • http://footylaw.co.uk Footy Law Blog

      Section 67 of the Sexual Offences Act 2003, states: “A person commits an offence if (a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and (b) he knows that the other person does not consent to being observed for his sexual gratification.”

      Evans was not convicted of ogling her in the nude; because the CPS believed – correctly as it turned out – that there was sufficient evidence to prosecute him for rape (section 1 of the same Act).

      If they did not believe that they could convict him of rape, then they could have prosecuted him under section 67. They could not charge both.

      But, by Evans own account, if he did not rape the girl, then he is guilty of breaching section 67 because he lied to get a key to a hotel room to which he was not entitled in order to walk in on a couple having sex. That is the point that I am making when I say that Evans convicts himself by his own testimony.

      Section 67 is not as serious as rape. But it is a serious sexual offence and would, as with rape, mean that Evans would be on the sexual offences register – but not for as long as he is having been convicted of rape.

      I don’t say that there is reasonable doubt in McDonald’s case. I say “…it might well be sufficient to cast reasonable doubt…” It is a fact that the jury found McDonald not guilty and so we know, as a fact, that the jury were not persuaded that the case against him was proved without reasonable doubt – that is the question juries are asked to decide.

      You quote the phrase “no doubt at all that he’s definitely guilty”. I don’t know where you are quoting this from. I have done a page search and it only appears in your quote.

      I say he is guilty because he is – he has been convicted by a jury and that conviction has been upheld – twice – by the Court of Appeal.

      What you are doing is trying to make your own mind up on partial evidence, comment and gut feelings rather than accept the decision of the courts who had the benefit of considering all the evidence.

      • leroy

        certainly that’s what i’m doing (trying to make up my own mind about the original verdict). but most of this post appears to be an effort to address and respond to such arguments.

        fair points on section 67, but your comment about convicting himself seems to me to come in the context of the rape charge, not some hypothetical section 67 charge, which you don’t refer to at all in the post.

        • http://footylaw.co.uk Footy Law Blog

          The reason I wrote the post was that so many people were commenting on the case without looking into it or only looking into the material on Ched Evans’ website.

          Lots of people were saying that both are guilty or both are innocent without understanding that there were different circumstances.

          Lots of people were saying that she chose to go back to the hotel with Evans.

          Lots of people didn’t understand that he had appealed (or had tried to) twice already and that senior Appeal Court judges had already answered the points being raised on his blog.

          So, yes, the post is an attempt to answer the arguments being made by people because most of them were based on a false understanding of the case.

          You are right to say that I didn’t mention s67 in the post (and as a law student I’d be marked down for that in an assignment) but I was trying to make the point without being too legalistic/jargonistic in the language; but it is the point that I was trying to make.

          • leroy

            all right. i agree that his appeals are unlikely to succeed because any issues with the outcome are disagreements with the original jury’s interpretation of the original evidence, rather than any new evidence. i just happen to share some of those concerns myself, based on what i know at this point.

            it’s good not to be to jargonistic but i think the way you’ve done it there leaves the impression that you’re making an entirely different (and somewhat flawed) argument than you actually are, e.g. that he convicted himself of rape by admitting that he let himself in the room.

          • Melia Windsor

            I haven’t looked at his website, only read transcript. One thing though is for sure, they all behaved badly.

          • Philip Giddings

            We needed and I now appreciate the clarification, though. I can see you were trying to argue a coherent case without the legal stuffiness, but better IMO to underpin it with the citations (should only take a bit of tweaking).

            I believe the old definition of rape (pre SOA 2003?) was the “unlawful carnal knowledge of a female”? So Ched by his recklessness in entering the room without knocking first would probably have fallen foul of that. I say probably because that seems a bit harsh – “I’ve got a bird” does not necessarily translate into, they had sex or were having sex at that time.

            But even if we accept that Ched is guilty under s. 67, it makes it somewhat harder to argue that he should be treated differently than all other footballers with criminal convictions, including sex offenders, who have been welcomed back into the game without protest.

            Moreover, I don’t accept that the protesters – many of whom did somewhat more than simply protest – don’t constitute a mob. They are asserting the right to make up their own Ched Evans Law as they go along, and impose it on others, just because they dislike the law of the land and rules of the FA (or lack thereof). Don’t solicitors swear an oath to uphold the rule of law? This is inconsistent with approval of vigilantes dictating whom football clubs may or may not employ, and targeting one ex-prisoner after the fashion of a lynch mob rather than campaigning to change laws or policies.

          • leroy

            personally i don’t have any issue with the people who oppose his resuming a football career. the law says he’s a convicted rapist. i have some questions about the particulars of the case, as i’ve expressed elsewhere in the comments here, but it’s not *unreasonable* of people to go by what the law has decided. so at this point it becomes a public relations / public opinion issue, as we see playing out currently. footballer is a job that requires people to want to look at you. if and when things reach a tipping point where that is true of evans again, he can do it. until then he can’t. that’s how this works and i think it’s fair.

            if there was an injustice done to him, i think it was by the jury, not the public response now.

          • Philip Giddings

            Fine, but who decides that? The due process of law, the rules of the FA, and football clubs, or activists who, rather than campaign for the FA to ban all convicted rapists, behave like a lynch mob, using rape and death threats against people who disagree with them, and singling out one ex-prisoner, to create as much trouble as possible for any club that signs him?

          • leroy

            eh, that’s the public for you

          • Philip Giddings

            Even if we assume all the protests were genteel and respectful (thus calling a whole host of people abject liars, including the Chair and Vice-Chair of two football clubs, Judy Finnegan and Richard Madeley) – civilised societies don’t decide guilt and punishment in individual cases by public opinion. Even a bunch of barons and a king realised in 1215 that crowd justice was primitive and barbaric.

            And it is not as though we have any reliable indication of whether the majority of the country’s 50 million eligible electorate wish to stop Ched Evans playing professional football. There was never a ballot of season-ticket holders at any of the clubs whose owners or managers wanted to sign him, and were subsequently forced not to sign him, against their will.

      • leroy

        also i didn’t mean to imply that i was quoting you when i put “no doubt at all that he’s definitely guilty”. i see how it comes across now. i was really just trying to talk about the jury there, and how that must be the conclusion that they reached if they convicted him but i can’t see how they got there.

      • john cox

        The prosecution would have struggled to prove that he wanted to observe them doing a private act for his own sexual gratification.It strikes me it’s a lot more likely he went there in the hope of having sex with the woman himself.

    • leroy

      also regarding what information the evans camp is seeking about the victim, the website is fairly explicit that one major interest is getting copies of the deleted facebook messages she supposedly posted the night of the incident or the next morning. it’s not hard to see how that could be relevant. certainly they may also at the same time be jerks who are fishing for reputation damage

    • skepticalbystander

      It appears to me that as more and more people analyse this case and consider all the evidence and all the testimony, the consensus of opinion is that a serious miscarriage of justice has occured.

      Whenever the debate seems to swing in favour of the viewpoint that the burden of proof has not been met, the pro conviction participants seem to resort to stonewalling by pointing out that the jury have reached their decision and the appeal judges have concluded that there is no new evidence to consider, so that’s it, the conviction stands.

      Well what if there is no new evidence to consider and the reality is that the jury just got it plain wrong? In my opinion, that’s where we seem to be right now.

      • Philip Giddings

        Thankfully, there was enough new evidence to overturn miscarriages of justice that resulted from the Hillsborough disaster, and from the tabloid demonization of those who were wrongly convicted, in which the media was hell-bent on swaying the juries. But some of those wrongful convictions might stand just because the juries were swayed by trial-by-media, and no new evidence emerged.

        This is indeed – to coin a phrase – an appalling vista of injustice in which populist prejudice prevailed.

  • JP

    Although this may not be explicitly covered in law, the real guilt began in the kebab shop when Evans had to ‘step over’ the young woman. At that point she was obviously incapacitated to a degree sufficient to indicate she could not adequately conduct herself. He did NOT choose at that point to assist her, come to her aid, help her safely home, or simply use her phone to contact one of her friends or family members to come and collect her.

    Instead, it appears he left it to his friend to ‘get a bird’ and take her to the hotel room they had jointly booked. Regardless of what actually was said in the hotel room, these facts indicate some degree of premeditation, and clearly there was intent to take advantage. Further evidence of this are the proven facts that Evans lied to get the key to the room AND exited by the fire escape to avoid being seen by hotel personnel and guests. Had he felt he was doing nothing wrong, he would not have thought it necessary to take these actions. Furthermore, they left the girl in the room alone afterward — unclothed, like a bit of discarded waste.

    Any honourable and respectable person thinking about this should discern the type of man Evans is. Why would any football club or any respectable employer wish to hire and expose its other employees, patrons, sponsors, etc. to an individual who makes these kinds of choices and behaves in this way?

    • Rachel11

      Because he’s served his time and doesn’t need to show any remorse. How many times do we hear that old chestnut? Because our players aren’t role models. If so then they don’t need to sell shirts do they. Their advertisers don’t need to subsidise their stadia. The advertisers don’t need to use footballers to advertise their goods.

      • peterdavis

        I like footballers because they score goals. Some of them have done disreputable things. That’s a reflection of the world we live in. Parents need to teach their children that – we can’t change our system of justice or alter the reality of mankind in order to protect people from the truth.

        • Rachel11

          You think though that your children and grandchildren won’t be affected by those whose parents didn’t teach them that too?

          • peterdavis

            When NFL quarterback Michael Vick was released from prison after serving time for organising dog fights, President Obama defended his right to resume his football career, saying he believes ‘in the idea of redemption, that people can get a second chance’.

          • JP

            I don’t recall all the particulars of the Michael Vick case but I listened to an interview with him and he certainly acknowledged and humbly accepted that what he had done was wrong. He took specific public actions (including lobbying for legislation) to prove that he learned from his experience and his incarceration. He clearly had reflected on what led him to own and abuse dogs for money making; he clearly understands now that it was wrong.

            Ched Evans, on the other hand, continues to assert that he did no wrong and his recent apology was for “the effects of that night,” not actually for the decisions he made or the actions he took that night. He is not repentant for what he did, or that there is a website registered in his name that vilifies and has ruthlessly exposed his victim. He is only repentant that he got caught and that the odds went against him when his actions were judged by a jury. It is impossible to ‘rehabilitate’ a person who believes he (or she) did no wrong; there is simply nothing to rehabilitate.

      • anneteak

        The concept that anyone in the public eye is a role model is fairly new.

        He’s a footballer not employed as a role model.
        What he has done is bring the club into disrepute by being judged to be a rapist.

        The title ‘role model’ seem to be awarded by public opinion.

        But what if the young woman involved suddenly regains her memory ( extremely unlikely given the circumstances) and says ‘I agreed’.

        What happens to his formally projected ‘Role Model’ status then?

        • Rachel11

          If the girl changes her testimony and says Evans didn’t commit any crime then his conviction is quashed. It doesn’t affect the role model concept at all. It does affect that he would not then be a convicted rapist.

          • peterdavis

            Can you explain why a footballer should be responsible not only for playing football, but also for teaching moral values to your children?

          • Rachel11

            A footballer is a role model. Millions of pounds rely on that in the form of sponsorship and advertising. You do not buy underpants worn by David Beckham because you do not admire something about the man. You don’t buy a football shirt with a player’s name emblazoned on the back if you don’t want to promote the idea that you admire them.

            It’s not that footballers should personally be teaching moral values to youngsters – it is that they shouldn’t be teaching youngsters that moral values that don’t matter. They shouldn’t be teaching them that never mind that rape conviction – it won’t hold you back in life or disadvantage you in any way.

            Playing football professionally is not any individual’s right. Convicted rapists don’t have an automatic right to be considered for ANY employment on equal terms – that’s the law. So by the PFA and a few clubs wanting a player on the cheap endorsing that it’s merely a case of serving time and that’s all it most certainly isn’t for anyone in Ched’s position for any future job.

          • peterdavis

            ‘They shouldn’t be teaching them that never mind that rape conviction – it won’t hold you back in life or disadvantage you in any way’

            Being sent to prison and going on the sex offender’s register isn’t a disadvantage then?

            ‘Playing football professionally is not any individual’s right.’

            No, but if somebody offers you a job which you are not legally prevented from doing, you have the right to accept it, and they have the right to employ you. This should not be determined by the moral stance of a vocal minority.

            It all comes down to whether you believe:
            1. We have a system of justice where crimes are punished and then you come out and get another chance, or
            2. The rest of your life is determined by the moral stance of a vocal minority, arbitrarily, depending on your crime ( footballers causing death by careless driving, or committing assault occasioning actual bodily harm are not included).

          • Philip Giddings

            Just a minor point. A prison sentence of 2.5 years doesn’t hold you back or disadvantage you, or deter anyone else from doing what you were convicted for?

            The most likely effect of Ched’s story upon all boys who know it, is to terrify the living daylights out of them from ever venturing within 200 yards of a woman after she’s had a few drinks, in case they get falsely accused of rape or sexual assault, which then destroys their lives.

          • Rachel11

            Only if they don’t bother to look at the case to understand why McDonald was acquitted. It’s pure scaremongering by men who wonder if they really took advantage of a woman and are now worrying that they raped – or maybe even thinking that because they’ve treated her badly she might claim it was rape though it was consensual. It doesn’t help when Telegraph readers latch on to articles by Allison Pearson written in such a way for men to imply example of men accused but acquitted of rape were merely lucky or never went to trial. The law is very clear. The jury is asked to consider if they believe (beyond any reasonable doubt) that the man reasonably thought he had consent.

          • john cox

            >The law is very clear.

            It really isn’t, you know. It’s gibberish, in fact. Section 74 says that the complainant is not to be treated as exercising a choice unless she has the capacity to exercise that choice. On the face of it, that’s nonsense – in order to demonstrate that you have the capacity to eat a banana, all you have to do is eat a banana. It’s tautologous. Of course, if the section is to mean anything at all it has to be interpreted to mean that ‘capacity’ doesn’t mean ‘ability'; it means something along the lines that the complainant may be in a condition where even though she makes a choice, it doesn’t count. One might therefore reasonably ask what that condition is. The law says nothing about that. The Court of Appeal was invited in Bree to say what that condition is. The obvious answer would have been that the answer is the same as in civil law; the consent is valid unless the complainant is too drunk to understand what she is doing. However, the Court of Appeal declined to lay down any test, saying instead that it was a question for the jury in every case. So that’s what the law is. It’s anything but clear. It’s a regular complaint about rape law that the Court of Appeal missed the opportunity in Bree to set out a sensible test.

            In my view, they should have done. Otherwise you get cases like the present one where the jury, no doubt influenced by Evans’ rather deplorable behaviour, go way beyond what previous cases have done in terms of how drunk is too drunk. That’s not good, whether you like the actual verdict or not.

          • Rachel11

            Because this is criminal law if there is any doubt as to what happened the defendant is not guilty. It is very clear and quite simple to apply. If the defendant had reasonable belief then it is not rape. Any guilty verdict has to be based on beyond reasonable doubt.

            The we have the protection of the appeals system. Whilst the first round he’s gone through is more on new evidence, whether the jury made a reasonable conclusion or whether the judge made comments that would sway them to one verdict the CCRC is much wider in its scope. It considers if the defence barristers pursued all reasonable lines of enquiry for example. I really have severe doubts that once all this process is exhausted that there are miscarriages of justice relating to this law.

          • john cox

            The law even on reasonable doubt is not clear, let alone simple to apply. The standard direction to the jury has changed several times over the last hundred years, often following trips to the higher courts on the subject. It really isn’t clear, for example, to what extent the jury is entitled to find something beyond reasonable doubt where, as here, there’s no prosecution evidence about it.

            As to what the elements of rape actually are, there are hundreds of academic artIcles about this, and not many people disagree that section 74 is not well drafted and is far from easy to understand. It doesn’t help that the CA have refused to lay down a test.

            Rape law is extremely difficult conceptually and very hard to apply in practice. That’s why, for example, in R -v- H in 2013 a very experienced judge withdrew a case (one not that dissimilar to Evans, actually) from the jury on the basis that there was no case to answer, and the Court of Appeal said he was wrong.

            > It considers if the defence barristers pursued all reasonable lines of enquiry for example.

            I don;t think you quite mean this. Do you mean that they can consider new lines of legal argument? This is true in theory; in practice it’s extremely difficult from what I understand to interest them in such without new evidence, and even if you interest them, you still have to get the Court of Appeal to say that their brother judges were wrong in law to reject your previous appeal, and there’s generally a fair degree of reluctance to do that.

            >I really have severe doubts that once all this process is exhausted that there are miscarriages of justice relating to this law.

            Well, everyone agrees, I think, that if Evans and McDonald’s evidence about what happened in the room is true they were wrongly convicted. I don’t think anyone can possibly say that there’s no possibility at all that that’s true.

            But anyway, rape is no different from other crimes where miscarriages of justice are concerned – why should it be? – and the CCRC hasn’t prevented there being plenty of those.

          • Guest

            Here’s a very similar case before the courts at the moment.

            http://www.yorkshireeveningpost.co.uk/news/latest-news/top-stories/ex-leeds-united-player-raped-woman-in-hotel-while-friend-filmed-her-naked-1-7049530?optionValueBeforeVoting=3784&pollId=poll_7_164843&vote=true&pollIdpoll_7_164843QuestionId0=0&cookieSet=true&pollIdpoll_7_164843=0

            By a sheer coincidence the accused in this sordid case said he didn’t ejaculate (neither did McDonald or Evans) as this makes it all OK.

            There seems to be a misguided rumour among young footballers that it’s OK to have sex in a hotel room with a drunk women and record it on video, as long as you don’t ejaculate.

            Well, it didn’t work for Evans did it?

          • http://footylaw.co.uk Footy Law Blog

            We must not comment on that other case on this blog until such time as the case is concluded; as it is currently sub judice.

            Reporting restrictions (and that includes blog post comments) apply until the case is concluded.

          • Bilbo Baggins

            Will the post be removed,then, mod?

          • http://footylaw.co.uk Footy Law Blog

            No. I don’t think that crosses the threshold for contempt of court; and it is a useful post on which to peg my comments about no comments about the case.

            I do not have the time to pro-actively mod the website comments which is why I prefer no discussion until after that case has concluded (which will have its own post).

          • Bilbo Baggins

            Here’s a very similar case before the courts at the moment.

            http://www.yorkshireeveningpost.co.uk/news/latest-news/top-stories/ex-leeds-united-player-raped-woman-in-hotel-while-friend-filmed-her-naked-1-7049530?optionValueBeforeVoting=3784&pollId=poll_7_164843&vote=true&pollIdpoll_7_164843QuestionId0=0&cookieSet=true&pollIdpoll_7_164843=0

            By a sheer coincidence the accused in this sordid case said he didn’t ejaculate (neither did McDonald or Evans) as if this makes it all OK.

            There seems to be a misguided rumour among young footballers that it’s OK to have sex in a hotel room with a drunk women and record it on video, as long as you don’t ejaculate.

            Well, it didn’t work for Evans did it?

          • Rachel11

            Is it a rumour that it isn’t rape if they don’t ejaculate? Or is it an idea that there won’t be the same forensic evidence? Or is it that they really know that they are raping and can’t ejaculate as a result? These are healthy very fit young men.

          • http://footylaw.co.uk Footy Law Blog

            We can’t accept further comment on that other case on this blog until such time as the case is concluded; as it is currently sub judice.

            Reporting restrictions (and that includes blog post comments) apply until the case is concluded.

        • JP

          Footballers may not be employed to be role models but in reality they are looked up to and emulated by young children, just as pop stars are by teenagers. Young children who play football hang posters of them on their bedroom walls, collect trading cards carrying their photos and playing statistics, persuade their parents to spend a lot of money to buy football shirts bearing their favourite players names and numbers, choose them on their fantasy teams in video games, seek to emulate their moves on the playing pitch and in street football around the world. Some players are idolised by children and adults alike, generations after their playing careers have ended. This is undeniable. Anyone who follows a football team knows it is so.

          • Philip Giddings

            Don’t get us on to pop stars! Millions of kids still adore Michael Jackson. Does that mean he’s influenced them to believe fiddly sleepovers are okay? No, it just means they love his music.

          • JP

            It’s unfortunate when a person takes one word or term from a comment and uses it to deflect attention away from the main point being made.

            I wonder if the men defending Evans have daughters or sisters and have stopped to ask themselves how they would feel if their daughter or sister had been raped and left practically unconscious in a hotel room. If they’re married, I wonder if they’ve asked their wives how they feel about it.

          • Philip Giddings

            It’s not one word or term, it’s a serious substantive point. You are making a hysterical claim that the commonly-known history of footballers (and pop stars and other celebrities) who did bad things in the past, damages children who admire them for their art, because the dreadful things they did make the said celebrities a harmful or dangerous influence on children.

            For a parent, that is a perfectly reasonable and natural anxiety, but can you post any links to evidence, based on scientific method, to support your claim?

            Suppose, for the sake of argument, Ched plays as a striker for Oldham Athletic, your five-year-old son is a supporter, and you take him to Boundary Park to watch a game. Ched scores a hat-trick and your son cheers him on. Does this make your son in any way disrespect girls and think it’s okay to treat them badly? Does it turn him into a misogynist macho moron, or does it just make him an ecstatic fan of Oldham Athletic?

            If the former, how does that work, exactly?

          • JP

            People lie, actions don’t.

            You’ve used the word ‘hysterical’ multiple times in your replies. In response to *my* posts, it’s laughable because I am far from hysterical in any sense of the word. It’s a word that misogynists use when they wish to attempt to discredit the opinions of women by casting then as grounded in emotion rather than reason and critical thinking.

            Also, your replies imply that you have much knowledge about lying to hotel staff to obtain second keys, slipping out of hotels undetected, having one-night stands with inebriated women. Hmmmm….

          • Philip Giddings

            So you have no answer to my question and no evidence to support your claim that the history of artists or sportsmen and women has any bearing on their influence on young people when said young people admire their performance at the art or sport in which they excel. Instead, your fragile ego is wounded without cause (certainly without intent from me, and how am I supposed to know the gender of someone called JP) and you react with a diatribe of cheap baseless insults. It’s there for all to see that my post addressed your arguments, assumptions and prejudices, and nothing else.

          • JP

            Mr. Giddings, there are few things more annoying in the virtual world than a person who comes into a discussion on a public forum and tries to completely dominate the conversation, who tries to bait and intimidate other moderate and reasonable participants with questions and obnoxious statements intended to coax others into arguments that he (or she) already believes only he (or she) can win.

            I don’t allow myself to be baited by people like that. I don’t want to converse with you. If I met you in a pub or at a party I would see through you immediately and would be quick to get my coat. If I found myself working with you in the same company I would ask for a transfer. You are welcome to have the last word. I made the couple points I was interested in making in this discussion and am happy to let them stand on their own merit.

      • john cox

        It’s too late. He was many people’s hero, and it turns out he behaved badly. Nothing will change that. Making him a martyr certainly isn’t going to persuade people who idolised him that his behaviour was wrong, if that’s not already what they think. All it achieves is to show that society’s not much good at forgiveness.

    • peterdavis

      re: At that point she was obviously incapacitated to a degree sufficient to indicate she could not adequately conduct herself.

      Yes but she was clearly OK to walk into the hotel and consent to sex with McDonald afterwards, as the jury agreed. We are not debating if Evans was a callous bastard, only if he committed the crime of rape.

      • JP

        I started my post by saying “although this may not be explicitly covered in law…” I am not debating anything. The debate over his guilt or innocence was handled by the jury and their decision was ratified in essence by the 4 judges who refused his leave to appeal. What I was doing was posting a few general thoughts and observations regarding the man’s character — as I said, “not explicitly covered in law.”

        • peterdavis

          Would it be legitimate to start posting ‘general thoughts’ about the woman’s character also? I suspect there’d be a slightly different response!

          • Clive Rymer

            Not legitmate. In law, him bad, she has nothing to answer.

          • peterdavis

            Agreed – the initial post was using general speculation about his character, to bolster resistance to raising any doubts about his guilt. And of course you could just as ‘legitimately’ start questioning her ‘character’, as some have done.

            I personally would not, and would suggest Evans’ detractors stick to the facts of whether he had non-consensual sex – not if he’s a nice guy or not.

          • EdinburghEye

            And of course you could just as ‘legitimately’ start questioning her ‘character’

            Not really, no. Ched Evans is a convicted rapist, a registered sex offender, who – at his own admission – treated the young woman shamefully.

            The young woman, by contrast, did absolutely nothing shameful nor criminal. There’s no legitimate way to question her character.

          • peterdavis

            Except that perhaps she had sex that she then regretted and claimed not to remember, to protect herself?

          • EdinburghEye

            Peter: Nope, medical evidence said that she was too drunk to be able to consent and therefore quite likely too drunk to be able to remember. There’s no evidence for anything else.

            Ched Evans may not find his rape of a woman too drunk to consent “shameful”, but any decent person would. As Ched Evans is a sex offender, he’s clearly not a decent person, so asking for a quote indicating that he admits his rape of her was shameful is probably a waste of your time.

          • john cox

            >Nope, medical evidence said that she was too drunk to be able to consent
            and therefore quite likely too drunk to be able to remember.

            This simply isn’t true. The medical evidence said the following:-

            “The expert called by the defence calculated that the complainant’s likely blood -alcohol level at about 4am would have approximated to something like 2½ times the legal driving limit. Hegave evidence that she would have suffered from slurred speech and unsteadiness of gait, but he would not have expected any memory loss. ” (para 17 of CA judgment)

            This is one of the strange things about the case – both the complainant herself and the medical evidence agreed that she hadn’t drunk that much, less than the complainant normally did on a night out and less than would normally be expected to cause memory loss (or incapacity, obviously – 2.5 times the legal driving limit wouldn’t normally do that).

          • EdinburghEye

            Yes, the expert called by the defense tried to minimise the alcohol level. What would you expect of the expert called by the defense? The jury listened to *all* the evidence, remember, not to a biased sample presented by the mob supporting Ched Evans on that shameful website – which I note Ched Evans has not asked to have taken down.

          • john cox

            >The jury listened to *all* the evidence, remember,

            Sure. But you said that the medical evidence said that she was too drunk to consent. That’s not true. You simply made it up.

            >What would you expect of the expert called by the defense?

            I’d expect him to give his honest opinion and to say whether it was an opinion which he expected to be unanimous or whether it was drawn from a likely range of expert opinion. That’s what experts in civil cases have to do and I can’t imagine criminal ones are different.

            I’d then expect the prosecution to call their own expert evidence to contradict him if they thought his evidence wasn’t true. In the present case I strongly doubt whether they did that, since the Court of Appeal don’t mention it.

            In any case, analysis of how much alcohol a person has consumed from their blood a while later isn’t terribly controversial. I wouldn’t expect a contest of expert evidence over it. Nor would I expect the suggestion that loss of long-term memory as a result of the amount of alcohol consumed here was unusual to be controversial, especially since in both cases the defence’s expert evidence confirmed the complainant’s own evidence (i) of what she had drunk, and (ii) that she regularly drank more without losing her memory.

            I reckon you’re barking up the wrong tree slagging off the expert evidence.

          • DeeWriteful

            And who would she then decide that the best thing to do is tell the police about it? What exactly is she ‘protecting’?

            Opportunistically having sex with incapacitated teenagers is shameful. I’m worried that you think otherwise.

          • john cox

            >And who would she then decide that the best thing to do is tell the police about it?

            I’m lost. She didn’t tell the police about “it”, if by that you mean the rape. She didn’t remember it. She went to the police because she’d lost her handbag.

          • DeeWriteful

            I was responding to this:

            “Except that perhaps she had sex that she then regretted and claimed not to remember, to protect herself?”

            And my point was, if she remembered and regretted it, why would she go to the police and say she remembered nothing? She didn’t have to go to them.

            Except for that she didn’t remember what happened and wanted to find her handbag

          • anneteak

            It is quite shameful to be that drunk and to stop a stranger in the street and head off to his hotel bedroom with him.

            But that’s neither here or there.

            It’s the actions in the room that count.

          • EdinburghEye

            There’s nothing illegal or immoral or indeed shameful about getting drunk – so long as you don’t then drive a car or harm someone else, neither of which she did. There’s nothing illegal or immoral or indeed shameful about heading off to a hotel bedroom with someone – so long as you intend only consensual sex. Sadly it’s pretty evident Clayton McDonald didn’t think consent was important.

          • john cox

            I don’t think you mean Clayton McDonald, do you?

          • EdinburghEye

            Clayton McDonald got the benefit of the doubt: the young woman seemed at least to have consented to come to his hotel room, and probably therefore to sex with him. But Clayton McDonald summoned Ched Evans to the room with the infamous text that he had “got a bird” – and then did nothing to prevent Ched Evans from raping her while she wsas too drunk to consent. Clayton McDonald’s behaviour was also shameful and disagraceful: no one who thought consent was important would have behaved like that.

          • john cox

            Of course he didn’t do anything to prevent Evans raping her – he reasonably believed she was capable of consent, and he’d just heard her orally consenting to sex (according to his own evidence). What do you expect him to do? Why on earth should he interfere?

          • EdinburghEye

            There’s no evidence that Clayton McDonald had any reason to believe the woman was capable of consent when Ched Evans entered the room: he was acquitted of rape himself because he got the benefit of the doubt, not because of any evidence actively acquitting him. Your invention of his “reasonable belief” comes out of nowhere.

            Your notion that a man who escaped conviction as a rapist by a hairs-thinness should be relied on for testimony “proving” his friend, whom he – not the woman – had invited to that room, is pure rape-apologism. I daresay you think Ched Evans is innocent, too.

          • john cox

            > Your invention of his “reasonable belief” comes out of nowhere.

            Oh, for goodness’ sake don’t be so silly. The CA say that the complainant did not have capacity, but that the jury thought McDonald reasonably believed that he did. That belief in law has to continue throughout intercourse if it is to permit an acquittal. Consequently the jury have found (according to the CA anyway, of course the jury doesn’t technically find anything) that McDonald reasonably believed in the complainant’s capacity right up to the time he stopped having sex, after Evans entered the room.

            Don’t blame me for inventing it. Blame the CA.

            >Your notion that a man who escaped conviction as a rapist by a hairs-thinness….

            Unanimously, of course.

            >…..should be relied on for testimony “proving” his friend, whom he – not
            the woman – had invited to that room, is pure rape-apologism.

            This is drivel. For one thing, I didn’t say it should be ‘relied on’. I simply said it was evidence. For another, it is far from clear that he did invite Evans. As to your last sentence, triying in vain to explain to you the implications of the CA’s decision is not ‘rape-apologism’, whatever that silly term means.

            > I daresay you think Ched Evans is innocent, too.

            I’m sorry I seem to have given you the impression that I’m a fool. I have no idea whether he’s innocent. Maybe she was unconscious and he just steamed in. Maybe his evidence is true in every particular. How would I know? I think he was wrongly convicted, certainly, but that’s not the same thing.

          • EdinburghEye

            Ah, the man with the unpleasant sympathy for rapists. I do not believe I have anything more to say to you.

          • DeeWriteful

            McDonald was very lucky.

          • john cox

            Some people might think that given he was innocent it was rather bad luck to be charged with rape, lose a year of his short career and be put through hell.

          • EdinburghEye

            Clayton McDonald escaped being convicted of rape despite there being no evidence the woman consented to sex with him, and despite his having invited a rapist to the room and done nothing to prevent the rapist raping. Your whining that he was “put through hell” suggests an unpleasant sympathy for rapists. I wonder why that would be?

          • john cox

            >Clayton McDonald escaped being convicted of rape despite there being no evidence the woman consented to sex with him,

            Of course there wasn’t any positive evidence of consent. In almost all rape trials the only evidence of consent is the defendant’s, and sometimes some circumstantial evidence. Two reasons: (i) most sexual encounters are private, and (ii) if there is positive evidence, there isn’t usually a prosecution at all.

            >Your whining that he was “put through hell” suggests an unpleasant sympathy for rapists.

            I always thought most people had sympathy for people unjustly accused. Obviously I was wrong.

          • EdinburghEye

            That you think Clayton McDonald was unjustly accused demonstrates you have an unpleasant sympathy for rapists.

          • john cox

            Well, given that he was unanimously acquitted, obviously it was unjust in one sense. I’ve got no idea what happened between him and the complainant, and nor do you, so whether he was in fact guilty if one were an omniscient deity isn’t worth talking about.

          • EdinburghEye

            You’re a bit confused about how our legal system works, aren’t you?

            A person charged with a crime, in court, has a legal right to the presumption of innocence, and rightly so: to send someone to jail, to give them a criminal record, is a big step.

            This does not mean that the person did not commit the crime. The majority of rapists are acquitted: this doesn’t mean they didn’t commit rape, merely that they get the benefit of the presumption of innocence if they cannot be proved guilty in a court of law.

            Clayton McDonald could not be proved guilty, so he was acquitted. From what we know of what he did – from his own testimony – he did, like most rapists, benefit from the presumption of innocence.

          • john cox

            >You’re a bit confused about how our legal system works, aren’t you?

            Well, you’re right about that! I think anyone who’s worked in it for as long as I have is pretty confused about how it works.

            Anyway, I thought you had nothing to say to me? I only started replying to you in the first place because you were posting lies about the medical evidence. If you think McDonald was ‘probably guilty’, crack on. It’s always edifying observing people who think they know what ‘must have’ happened between a couple of drunk people in private.

          • EdinburghEye

            Oh, bless, now the unpleasant sympathiser with rapists is claiming to have “worked in law” for a long time?

            Anyway, I thought you had nothing to say to me?

            You’re not wrong. I’m just mocking you now. Not only are you unpleasant, you’re also a random Internet braggart.

          • john cox

            >you’re also a random Internet braggart.

            Good grief, you think that spending 25 years as a commercial lawyer is something to brag about?!

          • EAB

            I hope Clayton sues you for claiming he is a rapist.

          • EAB

            This is a very complex subject and it is good to debate. We are never going to solve it on our own, but I am open to the possibility no crime occurred on that night in Rhyl. Was the night any more sordid than that of Van Persie with his friends and a stripper? Not in my opinion. Were they similar in that both incidents accounted for a serve loss of face on behalf of the complainant? I believe so.
            I am quite interested in the case, but mostly by the fact someone can claim amnesia and have their lack of testimony so readily believed with very little scientific proof they had amnesia. Now, in this article it was stated that new evidence included a claim in the denied appeal by a witness that the lady had alleged she gained amnesia on multiple occasions. This might not be reinforcing her amnesia being fact, just reinforcing the fact she has claimed amnesia on multiple occasions. If these unprovable, self-proclaimed amnesiac episodes also coincide with impulsive behaviour, then I would not be surprised if that was interesting to this case. Not enough to grant appeal, but indeed spark curiosity.
            The writer of this article states words of the affect “What fresh evidence can shed new light upon the events that occurred in a room?”. Easy. Someone says she told them a different story. Facebook messages from the night she sent re-surface casting new light on the events. She (like Brian Banks’ famous accuser and a Danish accuser of four men) confesses whilst secretly recorded. Indeed, even if she had at some stage tried to retract her claims (which has happened in many cases) the police may have stopped listening to her and carried on the case. I know this happens, and have seen the results of “kindly words” from the police influencing the course of a complainant. Police will often say, “For your own good, I won’t make a note of this” or words to that affect. If this has occurred and can be shown, it could shed fresh doubt on things in the public sphere, though legally it is irrelevant once a trial has concluded.

            In my experience and research of false rape accusations, where one woman was only convicted after 11 false complaints, there is very little investigation into the complainants behaviour and modus operandi.That is why Ched Evans has hired investigators, the authorities don’t seek to make themselves look stupid. They would actively suppress any information they do have that contradicts the line of their inquiries. This is, if ever discovered later, put down to discretion.
            I was actually very convinced by Ched Evans’ statement, and I believe within it, explains why things took the course they did. From that statement, what we have is two guys beginning to have sex with a girl, getting tired of her and walking off. He stated after he stopped having sex with her, she “huffed”. I don’t know about other men, but if a man has ever ditched a woman they are not very nice after. Let’s imagine a scenario, a girl agrees to have sex with two young men who she believes will make her the subject of attention, adulation and focal point of the night. By god, they may even stay friends with her afterwards and lavish gifts and kindness on her. Then they walk off without either ejaculating. Lets say she was conscious, would you take that as a compliment? How would you feel if that happened to you? Insulted? Rejected? Humiliated? How about deceived. You agreed to something and it turned into something you didn’t agree to, being abandoned. You even went to the effort of asking the one you knew most, “You’re not going to leave me are you?” Already with a fear of abandonment, you are left by not one, but two sleazy and deceptive people.
            Is it beyond the bounds of reason, that a woman, brought to a hotel to have sex with one man, then consenting to have sex impulsively with another man, gets ditched by both, wakes up in the morning having wet the bed and alone, is incredibly angry and upset? Would revenge be out of the question in such a state of abandonment? I know for a fact that in cases of false rape allegations, these kinds of events often precede the accusation. I can give documentary proof of this kind of event triggering false rape allegations. We live in a world where people get convicted of crimes they don’t do all the time, so can I believe that there was not crime committed? Absolutely.
            It has been alleged that this lady made a complaint of rape before, so would have been familiar with the process and the police procedures. Would that sway the courts? No. An African man was put on trial after a woman falsely accused him of rape in 2010, only to discover the woman had done it before, leading to the other falsely accused killing himself. The woman is still anonymous. The judge stated the cause should never have come to court, and that was that.
            In fact, in Britain, a false complaint of rape is one of the no holds
            barred, easiest ways for a woman to enact revenge on a man. There is
            often no preliminary investigation before arrest (can anyone remember
            the Hamiltons, arrested for raping someone they had never met?), and
            automatically, anonymity for the accuser regardless of whether any accusation is proved,
            and remarkably, even when lies are proved in the statement.
            Would the accuser in this situation ever admit she had mislead the investigation if she had? What incentive is there in honesty once this type of justice has been doled out to Evans? Evans did 2 1/2 years.
            I personally know a lady, who retracted her claim of rape made against an ex-boyfriend when she was in a new relationship. The man behaved in a sleazy manner, he had no interest in helping others relationships and was not respectful or kind. He was not a sympathetic figure. After getting all he wanted out of her, he refused her a lift home in the morning. During the sex, I don’t know what happened, she clearly liked him more than her boyfriend. Even if she felt at some point he had overstepped the mark in their BDSM role playing, I don’t believe she wanted him to do time. She also did not contact the police, but made the allegation in the presence of her family and they encouraged her to complain. She made a complaint but it was retracted, which was her mistake. The police would have investigated and dropped the case in any matter because she had sent facebook messages stating she didn’t think he had raped her. But then she retracted. I don’t think she wanted the stigma of having made a false allegation and didn’t realise the consequences socially of retracting. When she decided, in fact she felt she had been
            raped again within a consensual engagement, she got two years in prison. The police have an unwritten
            agreement with complainants, “Make a statement under priveleged legal
            protection, and don’t deviate, we’ll investigate, any
            lies/inconsistencies we find in the original statement will not be held
            against you so long as you don’t deviate from it”. Think I’m joking? The
            only way someone can get legal justice from a false rape accusation
            needs £200,000 to pursue a private prosecution for perverting the course
            of justice, or to act fast to be within the 1 year statute of
            limitations for defamation. Making a false rape allegation is the
            quickest and easiest way of gaining revenge on a man ever invented. Even
            if nothing is proven, they are banned for life from contacting the
            complainant.
            We live in a confusing world, and this particular case is not cut and dry as the original writer maintains.

          • E Clark

            There’s something far more shameful about finding a woman so drunk she’s fallen over, taking her back to a hotel, having sex with her and then texting your mate to tell him you’ve “got a bird” so that he can be filmed by his brother (the Evans parents must be so proud!) and mates before you both leave, warning the porter that she’s so drunk she might well be sick.

          • Bilbo Baggins
          • http://footylaw.co.uk Footy Law Blog

            I must ask that we don’t comment on that other case on this blog until such time as the case is concluded; as it is currently sub judice.

            Reporting restrictions (and that includes blog post comments) apply until the case is concluded.

          • Bilbo Baggins

            Apologies.

          • Clive Rymer

            I court, she would have been judged on her character. Obviously “the system” found she was “OK”. The “tweets” were made 5 months before the trial, so should/would have been available if pertinent.

          • DeeWriteful

            No you can’t because she is not on trial, was never on trial, and her character has nothing to do with whether or not CHed Evans raped her.

          • JP

            I’d say she showed a lack of good judgment and therefore got herself into a compromised situation, but as has been said repeatedly — he has been tried, convicted, twice refused leave to appeal, and has himself said he behaved shamefully. Ched Evans should redeem himself by quietly going about his life, choosing a way to humbly serve others that over time would allow him to prove that he’s learned and matured from this experience. He may have to go somewhere else to do that, if he can, because he’s radioactive in England at the present time.

          • peterdavis

            Which isn’t his fault, it’s the fault of a vocal minority that object to an offender coming out of prison and lawfully returning to his profession.

          • anneteak

            ‘….to humbly serve others’?

            What’s not ‘humble’ about kicking a football about ?

            Perhaps if he changed his kit to sackcloth and ashes?

          • Philip Giddings

            I don’t see how Ched could have earned parole (no, it’s NOT automatic, it depends on good behaviour) and release on licence with NO conditions designed to stop him playing professional football, if he had not learned and matured from his experience already, in prison, as a gym coach and role model for younger prisoners.

            Everyone was aware that he had maintained his innocence from the moment the jury convicted him. The feminists claim this automatically prevents his rehabilitation. There are circumstances in which this assertion would be correct, but Ched’s case is not one of them. Why? Because he maintains that the woman clearly and capably consented to sex. This was not (and probably never can be) proven or disproven; it was simply disbelieved by the jury.

            So Ched’s attitude is not that it’s okay to have sex with women who are obviously too drunk to consent; his attitude is that he condemns and abhors rape.

          • http://footylaw.co.uk Footy Law Blog

            I don’t know where you are getting your information from; but it is wrong.

            Under section 244 of the Criminal Justice Act 2003, the Secretary of State has a duty to release prisoners on licence once they have served the requisite custodial period.

            Section 244(3)(a) of the Act states that the requisite point for sentences in excess of 12 months is half way through the sentence.

            As for the latter part of your comment; clearly it was proven – that is a matter of public record.

          • Philip Giddings

            “Cleary he was convicted” and “clearly it was proven” do not reconcile with each other in cases of miscarriages of justice. In those cases, it turned out not to be proof.

            To clarify: prisons have no power to add days to the length of sentences of prisoners for bad behaviour?

          • http://footylaw.co.uk Footy Law Blog

            Under prison discipline rules, a prison can “adjudicate” on behaviour issues and, if additional days are considered appropriate, they can refer the matter to a district judge who can impose a requirement to serve additional days.

            This is restricted to a maximum of 42 days per incident; and in any event additional days cannot extend a sentence beyond a prisoner’s full sentence; but can extend it beyond the half-way point.

          • Philip Giddings

            Thanks for clarifying. So Ched’s release date did depend in part on being sufficiently well-behaved to avoid falling foul of those rules. I would have thought this, together with his attitude to rape, and record of working as a coach in the prison gym, would have been taken into account in the formulation of the terms of his licence on release, and the plan for monitoring and managing him.

          • http://footylaw.co.uk Footy Law Blog

            No. His release date was set out in law.

            It could have been extended if he had acted unlawfully in prison; but not for anything else.

          • Philip Giddings

            That’s what I meant. He did nothing to warrant an extension. And I’m sure the relevant authorities require compelling evidence of serious sex offenders’ improved character and attitudes, and rehabilitation while in prison, before they’re released on licence conditions which allow them to associate freely with (adult) members of the public, without supervision.
            On a tangential point, the statutory blanket ban on all registered sex offenders working with minors is hysterically ludicrous, given the numbers on the register for trivial offences where there are no victims (such as being caught dogging, etc) and which only involve consenting adults.

          • http://footylaw.co.uk Footy Law Blog

            “I’m sure the relevant authorities require compelling evidence of serious sex offenders’ improved character and attitudes, and rehabilitation while in prison, before they’re released on licence”

            I don’t know why I bother answering you as you don’t want to hear what you are told.

            The authorities would require no such evidence – compelling or otherwise. The release date of a prisoner on a fixed term sentence is set out in statute. It would be against the law for the prison to detain a person beyond that time.

            The only exception to that is if the prisoner has been required by a judge, after adjudication, to serve additional days – but that is, in effect, a sentence for an additional crime or discipline issue – it does not affect the length of time served in custody for the original offence.

          • Philip Giddings

            I got that the first time (sentence length) and acknowledged it in previous posts. I was also referring to the arrangements for Ched’s management and supervision, which ought to have been more restrictive, if he failed to demonstrate reformed character. I infer from these arrangements, which allow him to play professional football, that he has indeed demonstrated reformed character. The relevant professionals who determined the terms of his licence and supervision programme don’t seem to concur with your hysterical claims that female staff at football clubs have reason to live in fear that he is going to jump on them.

          • http://footylaw.co.uk Footy Law Blog

            The probation service has no power to say whether or not a prisoner on licence can or cannot play football.

            Licence conditions for fixed-term prisoners released on licence are pretty standard.

            I have not made any claim, hysterical or otherwise, that “female staff at football clubs have reason to live in fear that he is going to jump on them.”

            However, it is a known fact that sex offenders are more likely to re-offend that other offenders – hence why parliament created the sex offenders register.

            And many women will not be comfortable working alongside somebody that is a rapist – fear will be a part of that.

          • DeeWriteful

            ‘ sex offenders are more likely to re-offend that other offenders’

            Particularly those who do not actually consider their actions to be crimes and cannot accept that having sex on incapacitated teenagers is rape.

          • john cox

            Well, it’s not, of course, if the defendant has a reasonable belief that the teenager is not incapacitated. If the defendant has a belief that she wasn’t, but the jury finds that belief wasn’t reasonable, he’s unlikely to change his belief, especially since both the people present held the same view.

          • john cox

            >As for the latter part of your comment; clearly it was proven – that is a matter of public record.

            Nonsense. Only a fool thinks that a court finding ‘proves’ anything. Proof is what happens in mathematics.

          • http://footylaw.co.uk Footy Law Blog

            Please do not be abusive.

            A conviction is secured when the jury concludes that the prosecution have proved their case beyond reasonable doubt.

            The prosecution have proved their allegation against Ched Evans.

          • john cox

            Well, yes, I know that ‘proof’ is the word the law uses, but that just goes to prove (hah, see what I did there?) that the law is an ass and gives itself airs far beyond its actual abilities. I still maintain that only a fool thinks that a court verdict ‘proves’ anything in the lay sense of that word.

          • E Clark

            I do think it says an awful lot about someone that they use the term “feminist” as an insult. Do you include the men who feel the same as ‘feminists’?

          • Philip Giddings

            Read my post again and see that I use the term ‘feminist’ to describe a specific claim they make which is not in dispute. But you choose to engage in a pernicious and pathetic attempt at a personal attack based on a false premise, instead of addressing the substance of the argument.

            Others might observe that this approach reveals somewhat about you, but I’m more interested in anything you might have to contribute to the discussion of the issues at hand, that might be worth reading.

          • Jeff Sands

            I have read your post and stand by what i say. You use it as an insult, or you would use the word ‘people’ because it has nothing to do with feminism. What about the men who also believe Evans should not return to football? If the victim had been male, the outcry would be the same. Personally I think if he shows real remorse and attempts reparations, maybe some day he should. but I have no interest in football. I’m not someone whose child will run up to Evans asking for an autograph. Because I have no belief he should never play again, does that stop me being a feminist?

        • anneteak

          The jury may have been wrong.

          It’s impossible to say.

          But the 4 judges could only overturn the verdict on new evidence, which it’s almost impossible to provide, simply because it’s always going to be down to the belief of what happened in that room and not an eye witness accounts or indisputable evidence.

          I’d like to read the receptionist’s account. Because I can’t quite work out why he would be listening at the door.

          Suspicion of over occupation as a reason doesn’t seem to cut it.

          • JP

            The 4 judges in 2 separate instances (1 judge, then a panel of 3) cannot ‘overturn’ anything. Their role is to give Evans leave to appeal his conviction IF they believe there is sufficient NEW evidence to warrant it. Both times they decided there was not sufficient evidence and therefore denied him leave to appeal.

          • E Clark

            He was concerned about what was happening as Evans lied to get in the hotel room. He’s not been made out to be a pervert.

      • Frank

        How do you know that the jury agreed she consented?
        Their deliberations are secret – it is fair more likely, given the facts of the case, that they believed McDonald’s belief of consent to be reasonable, than that they decided she was capable of consenting to McDonald.

        • Melia Windsor

          What? That doesn’t make sense.

          • Frank

            And which part is confusing you?

    • anneteak

      If the men were in the look out for a ‘bird’ it’s more likely that he would have helped her up in the shop.
      He didn’t seem a all interested.

      Why would the booking of a hotel room be proof of intent?

      The only certain intent seems to be to go out and drink. If you can’t drive then you would book a hotel room.

      And leaving the girl alone and undressed afterwards in a hotel bedroom isn’t exactly proof either…considering the time.

      I would be more convinced if she had been dressed. That would have given a more solid indication of non- consent.

      • Philip Giddings

        Your last point is an excellent one. Would a woman who was too drunk to consent even bother to fully undress, even if she was able to? (I have always found bras tricky to unfasten, which women have typically asked me to do when they have undressed in my presence, simply because it’s easier than unfastening it themselves, despite the fact they must do it at least once a day every day. I don’t think this is too much information, as it seems to be relevant.)

        And would a rapist typically bother to fully undress his victim?

        This piece of evidence – that she remembers being naked when she woke in the hotel room – favours Clayton’s claim that she capably consented to sex with him.

        In Ched’s case, I see no reason to believe she became incapable ten minutes later. It’s still possible (sudden onset of tiredness, passing into semi-consciousness) – and it’s also possible that she didn’t want sex with him, even if she was capable of making a choice, and that Ched failed to take reasonable steps to ascertain her consent. But none of this amounts to proof that she didn’t consent, or was incapable of consenting, beyond a reasonable doubt.

        • DeeWriteful

          Are you serious? You can’t just guess at things and then call it evidence.

          You just made a crazy assumption about whether a rapist might undress his victim, and based on that have made up your mind about something that a jury and four judges have already ruled on,

          Get a fucking grip.

          • john cox

            You’re right about that, but then the CA made a point of the fact she was naked, and some previous poster seemed a bit outraged by it as well. One might think that one can tell from the CA’s – equally absurd – passing mention of it where they were coming from – i.e; we must pour all the bile we can on the victim to justify the conviction, because it’s going to need it (a usual mindset for the CA).

          • Philip Giddings

            Precisely – I am saying these are all possibilities and my whole point is that they don’t amount to compelling evidence. However, the fact she was naked suggests she was capable taking her clothes off (which further suggests capacity to consent) or willing to ask someone else to do it (which suggests consent).

            Anneteak made the same point. You not liking her being naked doesn’t make her any less naked (as per her own testimony). And you hiding behind the jury and their decision, for protection, while screaming expletives, doesn’t make them any less human and fallible, and capable of making mistakes.

          • http://footylaw.co.uk Footy Law Blog

            “However, the fact she was naked suggests she was capable taking her clothes off (which further suggests capacity to consent) or willing to ask someone else to do it (which suggests consent).”

            It doesn’t suggest anything of the sort without any evidence as to who took the clothes off – which may, or may not, have been included in the statements of Evans and McDonald.

          • DeeWriteful

            The fact that she was naked doesn’t suggest anything of the sort – you’re making assumptions as to how she got naked. Highly illogical.

    • john cox

      >Although this may not be explicitly covered in law, the real guilt began
      in the kebab shop when Evans had to ‘step over’ the young woman. At
      that point she was obviously incapacitated to a degree sufficient to
      indicate she could not adequately conduct herself

      This is rubbish. The evidence was that she fell over once. That doesn’t make someone incapacitated. In any case, the kebab shop was full of people who could have helped her if they felt she needed it.

      >Furthermore, they left the girl in the room alone afterward — unclothed, like a bit of discarded waste.

      As opposed to doing what, exactly?! You think people having consensual one-night stand want to wake up next to the other party??

      • Bilbo Baggins

        It is a matter of record that McDonald told the receptionist at the hotel to “look after the girl in Room16, she’s sick”. So he was aware of her physical condition at that time but put the onus for here well-being on the hotel. After seeing her consume part of a pizza and fall down drunk in the takeaway it was pretty obvious she wasn’t firing on all cylinders.
        We all know the dangers of driving too much, then eating, then passing out, vomiting and choking on it. Neither of the men concerned seemed to be bothered by this aspect of the situation.
        If Mc Donald thought the girl was sick he should have sought medical help.
        These two men also thought it was OK to have serial unprotected sex with a girl they had never met before. Have they never though about STDs? Evans never thought about the health risk to his girlfriend in all this.
        To top it all they left her in a hotel room with no means of getting home. McDonald knew she had no handbag as, apparently, she asked him to stop the taxi leaving so she could look for it. The fact that she went back to fetch the dropped pizzza and didn’t make a fuss about having no handbag should have alerted McDonald that her congnicence was off.
        The least they could have done was leave her some money for a taxi.
        Even if Evan’s conviction is overturned – which I doubt – the behaviour of both men was irresponsible and distasteful. It says a lot IMO about their moral characters.

        • john cox

          >If Mc Donald thought the girl was sick he should have sought medical help.

          I don’t think the average doctor or ambulance would be too thrilled at being called out in the middle of the night just because someone had got drunk and then eaten a pizza.

          >These two men also thought it was OK to have serial unprotected sex with a girl they had never met before.

          As did the complainant, of course, not that two wrongs make a right.

          >Evans never thought about the health risk to his girlfriend in all this.

          I’m not sure we know that, do we? He might have booked an appointment at a clinic first thing the next morning for all I know, or you, I suspect.

          >The least they could have done was leave her some money for a taxi.

          Again, do we actually know they didn’t?

          Still, you’re right of course that it’s an unedifying tale. I can never resist being accused of victim-blaming, so I’ll just say that getting so drunk that, according to you at any rate, strangers incur a duty of care to give you money and call doctors to look after you, might also be considered irresponsible by some.

          Anyway, Evans has paid a pretty heavy price for all this. He’s been convicted of rape without the least regard as far as I can see for the statutory tests and basic legal principles, exactly because he’s a Bad Egg for among others the reasons you mention.

          • Guest

            “Anyway, Evans has paid a pretty heavy price for all this”

            As has his victim.

            “He’s been convicted of rape without the least regard as far as I can see for the statutory tests and basic legal principles, exactly because he’s a Bad Egg for among others the reasons you mention.”

            Absolute poppycock.

            Your uniformed response makes me think you haven’t grasped the principles of law that the erudite owner of this blog has gone to great pains to explain.

          • Bilbo Baggins

            “Anyway, Evans has paid a pretty heavy price for all this”

            As has his victim.

            “He’s been convicted of rape without the least regard as far as I can see for the statutory tests and basic legal principles, exactly because he’s a Bad Egg for among others the reasons you mention.”

            Absolute poppycock.

            Your uninformed response makes me think you haven’t grasped the principles of law that the erudite owner of this blog has gone to great pains to explain.

          • john cox

            >As has his victim.

            Absolutely. Lots of litigation is like that; both parties would have been better off if it had never been brought.

            >Absolute poppycock.

            Always a pleasure to have your views, of course, but possibly they would carry more weight if they engaged with the arguments I’ve made.

            >Your uninformed response

            I’m not sure it’s quite so uninformed. Before starting to post about this case I read the CA decision, Evans’ site, the Sexual Offences Act, the relevant chapter in the leading undergraduate text book, every CA case on capacity under the SOA that I could find, various online comment on R -v- Dougal and on this case, and a couple of academic articles I found on line (I drew the line at paying for the Modern Law Review). I also spoke to a couple of professors of criminal law, a QC, a barrister friend with experience of both prosecuting and defending rape cases, and four or five other lawyers. I suspect I understand the pre-existing law on section 74 SOA at least as well as most posters on this blog. I’ve also practised as a commercial litigation solicitor for 25 years and been to many trials and in front of the CA many times. I know at first hand what impact evidence that someone is a Bad Egg has on the ability of judges, including the CA, to assess the evidence rationally. Any experienced trial lawyer will tell you the same thing.

            >makes me think you haven’t grasped the principles of law that the erudite owner of this blog has gone to great pains to explain.

            Well,I don’t think you’d be wise to place too much faith in that, though obviously it will be comforting for you that it agrees with your own views. He/she has admitted that the piece makes no effort to provide an unbiased summary of the facts, for instance. He/she also hasn’t explained the law of capacity in the slightest, and has posted authoritatively that sex offenders are more likely than other criminals to re-offend (not true), that most men charged with rape are acquitted (not true), that rape is committed by penetrating a woman without her consent (absolute nonsense) and that evidence of a complainant’s sexual history is available only in very rare circumstances and in particular not to rebut evidence along the lines of ‘I don’t remember but I don’t consent to sex with strangers’ (read any textbook on this and form your own view; I can recommend a good one).

          • Jane

            John Cox – you said

            ” I know at first hand what impact evidence that someone is a Bad Egg has on the ability of judges, including the CA, to assess the evidence rationally. Any experienced trial lawyer will tell you the same thing.”

            This is yet more poppycock.

            It seems to me that you don’t like the outcome, so now you are alleging that judges are biased. I think you are really grasping at straws here.

            If you are a solicitor then you will know that the judge at a trial cannot control the outcome, only direct the jury on points of law and give sentence.
            In this case it was found by the Court of Appeal that their was no misdirection of the jury.

            If any defendent is, was you put it ” a bad egg” and had a criminal record then only the judge would be aware of that. This would only be taken into account if a guilty verdict was reached.

          • john cox

            >If any defendent is, was you put it ” a bad egg” and had a criminal record then only the judge would be aware of that.

            Yes, yes, of course. Obviously. You’ve never been to a trial, have you? There’s plenty of ways of suggesting the defendant is a Bad Egg besides implying a past criminal record. In the present case, Evans presents a target in this regard one could hardly miss.

            >If you are a solicitor then you will know that the judge at a trial
            cannot control the outcome, only direct the jury on points of law and
            give sentence.

            Not much at a criminal trial, agreed – although his decision, at this discretion, to refuse evidence the defence wanted to call about the complainant’s previous history might or might not have had an effect on the outcome. Probably not, since it wasn’t a ground of appeal. But that wasn’t my point – I’ve seen the effect logically irrelevant but prejudicial evidence has on civil judges, I suppose this effect to be even greater in juries.

            If you don’t think lack of sympathy for the defendant in general has an effect on the CA, read their judgment in this case and then their judgment in R v Bree.

          • Jane

            I have also noted:-

            Under the 2003 Act once the prosecution has proved that sexual activity took place in one of the precluded circumstances (e.g. victim detained, asleep or drugged) it would be for the defendant, on the balance of probabilities, to persuade a jury that consent had been given (a reverse burden of proof).

            Now could it not be argued that the victim was “detained” as she was unable to leave the hotel as she had no money for a taxi? (and Mc Donald was aware of this)

          • john cox

            I shouldn’t have thought so, no. There’s no evidence she wasn’t free to go. ‘Detained’ means a lot more than not having any money to get home.

            Anyway, evidently it wasn’t argued by the prosecution.

          • john cox

            Incidentally, you rather make my point with your reference to evidence of previous convictions being inadmissible. The reason the law was changed to make that the position was precisely that it was felt that evidence that the defendant was a Bad Egg disrupted the jury’s logical decision-making faculties to too great an extent.

          • Jane

            I think you forget that the jury is made up of individuals who have no training in law and can be swayed by plausible arguments.
            Judges however, are in the position they are in because they have shown by their professionalism and knowledge of the law that they can advise juries correctly and fairly and administer justice in an even-handed way.
            At the end of the day courts are interested in “proof” not “truth” and I can’t see how the legal system can be altered to change that fact.

          • john cox

            I assure you I don’t forget that. Ask any advocate – the first thing you try and do is show that your opponent is a Bad Man.

            In the present case, the CA could obviously have gone the other way if they wanted. They just didn’t want to. That was because they didn’t like the cut of Evans’ jib. It’s obvious from every line of their judgment, and a cynic like myself would say that the more irrelevant prejudicial detail the CA put into their judgments, the more aware they are that there are issues they’re choosing not to explore.

            Contrast R -v- Bree, where the defendant was freed largely on the grounds that he’d taken the trouble to wash the vomit out of the complainant’s hair before starting anything sexual. (that might not be quite how the CA actually put it).

            That’s how it works; judges, juries, it doesn’t matter. If the jury had liked Evans’ behaviour a bit more, they’d never have managed to convince themselves that what they saw satisfied the statutory test.

          • http://footylaw.co.uk Footy Law Blog

            “He/she has admitted that the piece makes no effort to provide an unbiased summary of the facts, for instance. He/she also hasn’t explained the law of capacity in the slightest, and has posted authoritatively that sex offenders are more likely than other criminals to re-offend (not true), that most men charged with rape are acquitted (not true), that rape is committed by penetrating a woman without her consent (absolute nonsense) and that evidence of a complainant’s sexual history is available only in very rare circumstances”

            How can anybody take your views on the Ched Evans case seriously when your views on the blog – and what I have and haven’t said – is so appalling bad compared to what was actually said.

            Please stop now. You’ve had your say. Your comments are unproductive and no longer welcome.

          • EAB

            What a ridiculous thing to say, you started the debate on your own page and have allowed comments. If you didn’t want people talking about it don’t bring it up. If it were simply a case of people patting themselves on the back and saying “Well done, what a great post” I doubt you would have thought you needed to “clarify” things. As it stands, you have given your view on the matter, but it won’t stop people wondering or disagreeing. Your aim wasn’t to give the last word on this subject was it? What you haven’t mentioned is that from the beginning, the police seem to have had an odd idea of how to go about things. What do you make of the “Titus Bramble” scrawl on an interview statement for example? Was plod exploring the propensity of black defenders to rape? Bizarre. You know what, I’ll go out on a limb and say I doubt this case would have reached court if one of the defendants wasn’t black.

          • Jane

            “>The least they could have done was leave her some money for a taxi.

            Again, do we actually know they didn’t?”

            Because she had to ring someone to collect her from the hotel. If she had money she would have got a taxi herself.

          • john cox

            How do we know that? I don’t see it in the CA decision. It’s quite plausible, granted.

            I don’t really know enough about the etiquette of one-night stands in hotels to say what a gentleman’s supposed to do. Evans might not have had any cash on him, after all. And whatever else was their fault, the fact that the complainant was drunk, asleep in the hotel, and had left her handbag somewhere else weren’t. I’d have thought there were better sticks to beat them with.

            It’s a bit like this bizarre insistence on her waking up naked. Isn’t naked how people always wake up when they sleep in hotels (unless they’re brought their pyjamas or whatever)? If a gentleman has a one-night stand in a hotel room with a lady who then falls asleep, is he really supposed to reclothe her sleeping form? I’m bound to say it wouldn’t occur to me, but as I said I’m a little weak on the relevant etiquette. No weaker than Lord Justice Judge, though, I’ll be bound, and he saw fit to throw his detail in as a bit of prejudicial material.

          • Jane

            Evans wouldn’t be aware she had lost her handbag as he met her for the first time in the hotel bedroom.
            McDonald, on the other hand, knew she had lost her handbag (because she asked him to stop the taxi leaving to look for it) and had no means of getting home.
            So I will grant you that the charge of “abandonment” can’t be levelled at Evans in this instance.
            None of this was Clayton’s responsiblity, I agree, also.
            However, had he (Clayton) acted like a gentleman in the first place and put the girl in the taxi alone with instructions for the driver “to take her home”, given the driver £20.00 (he knew she had no handbag – unless girls are using giant pizza boxes as handbags these days) then none of this would have happened.
            (I am also aware that you will reject that last paragraph as a red herring.)

    • RFE .

      Everything you have wrote here is circumstantial. HE used the fire exit? That has what to do with the price of tea in China?
      He didn’t rescue the drunk woman? Am I guilty of not helping a homeless man?

      The crime here is not having sex with a woman who is drunk. The crime is did he have sex with a woman who could not consent ie unconscious. The latter cannot be proven.

      I agree the cases are different, but what it seems to me is that McD is only to prove a positive. People saw him enter the hotel therefore there was consent. Evans is having to prove a negative, that he didnt do a certain action. This is the opposite of innocent until proven guilty.

      Taking advantage of a drunk woman is not rape. Even the judge said as such.

      I think the jury presumed Evans was guilty rather than rationalized. Evans’ actions were creepy but rape? We have McDonald an eye witness to consent.

    • Melia Windsor

      How does one jointly book a hotel room? Interesting.

    • Melia Windsor

      How many people safely help home drunk women out of interest? All those involved behaved in a sleazy manner that evening. Morals.

  • Jaqui Davies

    Evans, McDonald, those taking photos through window – and yes, the ‘victim’ too – have behaved disgracefully. Time for all to adopt a low profile. Although, you do have to wonder at the verdicts, two of them in that room with a, frankly, not altogether pleasant, claimant. If Evans’ appeal is successful let’s all afford him the same sympathy and concern given to her. Neither of them seemingly people we should or could look up to but let’s have an equal playing field please!

  • Bijouthecat

    Many thanks for this excellent and illuminating analysis.

  • Robin Banks

    its supposed to be legal opinion turns out to be trashing Evans disgraceful.

    • http://footylaw.co.uk Footy Law Blog

      It doesn’t trash Evans. It trashes his arguments because his arguments do not hold up to legal scrutiny.

      • http://www.minimanager.co/ Ix Techau

        Didn’t hold up to this particular jury. Let’s not pretend that every jury would have reached the same decision. There are plenty of question marks to cause doubt.

      • anneteak

        It is written with bias.

        ….And I say that having had a entire career of writing stuff with a bias.

        The jury’s verdict is used as a base to state imponderables as facts.

        I think you should have stuck to the legal position ….without extrapolating. That was Interesting,

    • Frank

      Trashing Evans would be things like calling him a cunt. Trashing Evans is not providing a counter argument. Evans has a right to free speech, his right to free speech provides him with the right to defend his actions even after being proved guilty. His right to free speech does not extend to a right not to be criticised.

  • Philip Giddings

    On your point about Ched’s “surreptitious” behaviour (lying to obtain the key to a room had booked and paid for, and sneaking out through the fire exit)…

    (1) Hotels have strict rules limiting the number of occupants who stay overnight, which they have to police or they run into safety and insurance issues. That’s why the porter eavesdropped outside the room.

    (2) He may not have cared how he exited the building – when you’re drunk, a door is a door (when it’s not the wall).

    (3) Ched and Clayton co-operated fully with the police, without the presence of solicitors, before rape charges were brought. Why on earth would they both do that, if either of them had a guilty conscience and something to hide?

    • leroy

      well, the porter SAID he was eavesdropping because of occupancy regulations. that may or may not have been the real reason he was doing it.

      re (2), personally, if i had just told a hotel desk clerk an elaborate story about how i needed a key to a room to stay the night at 4am, and then found myself wanting to leave again a short time later, and there was a back door available, i would absolutely take advantage of it rather than risk having to explain to the clerk why i was leaving again, whether or not i had done anything illegal in the interim. it’s just awkward. evans may or may not be the sort of person who thinks like this, but they certainly exist and the action is not inexplicable

      • john cox

        That was Evans’ explanation for leaving via the escape. The prosecution of course said it suggested he was hoping to remain undetected.

        I don’t see that it matters a row of beans either way to the issues the jury had to decide, myself.

    • Frank

      1) It does not matter why he lied, the fact he lied to get into the room is evidence that he did not take steps to establish consent.

      2) It does not matter whether or not he cares about how he exited the building – but he gave evidence as to why and his reasoning is evidence against him

      3) The law is what it is, the law is not what criminals want it to be. He may actually believe what he did was not rape, which would mean he would not have a guilty conscience. Him holding that belief does not alter the law

      • peterdavis

        Isn’t the fact that he asked if he could get involved in the sexual activity, and the girl saying ‘yeah’, taking steps to establish consent?

        • Frank

          Who asked, though? Both men claim the other asked, which means there is no real evidence for either having asked.

          • peterdavis

            There’s no real evidence to anything, since no-one else was there and she says she can’t remember. Both men saying that the other one asked, is as good as it gets. If it’s true, they did. If it’s not, they are lying.

          • Frank

            What the hell are you about, claiming there’s no real evidence to anything? There is evidence of everything required for a rape case, including CCTV and eye witness testimony of her state and an admission of penetration. That is how it went to court, that is why he was found guilty.

          • peterdavis

            There’s CCTV showing her quite capably walking into the hotel. There is Evans and McDonalds admission of having sex with her. These don’t add up to rape.

          • Frank

            There was more CCTV than the edited single frame per second (when the video is actually a collection of stills, it is impossible to judge her capability – although the fact she walks in a zig-zagging fashion certainly suggests she was actually not as capable as you would like to suggest) hotel camera used on his website – the evidence taken as a whole easily adds up to rape.

          • peterdavis

            Yet she was capable of consenting to sex with McDonald, as agreed by the jury. So please tell me your evidence.

          • Frank

            “As agreed by the jury”? Who deliberate in private and keep those deliberations secret?
            Do you not think it more likely their decision came down to the reasonableness of his belief, not the jury deciding she consented?

          • peterdavis

            I was replying to your assertion that the CCTV footage proved she was probably incapable of consenting. In which case she could not have consented to McDonald too. You’d agree with that – the CCTV footage isn’t really relevant, since she consented with McDonald?

          • Frank

            The CCTV did prove she was incapable of consent. That is what the verdict signifies – that the jury found the case against Ched Evans proved. It is likely they were also satisfied she could not consent to McDonald. It is likely the verdict in relation to McDonald was down to his belief of her consent being considered reasonable.

          • peterdavis

            The CCTV did not prove this, it only suggested she was drunk,as are lots of people who have sex. Evans testimony was that she asked him to perform sex acts on her, and McDonald corroborates that. That’s why he believed she consented. She claimed not to remember, so couldn’t help prove it one way or another. Why you feel it is such a cut and dried case, based on this very vague and marginal evidence, is not clear.

            Actually also, a question. As you said, ‘It is likely they were also satisfied she could not consent to McDonald.’ So why wasn’t that rape? Surely it’s not down to what the man thinks, it’s down to the facts of the matter? If she’s not capable of consent, irrespective of what I might believe, it’s rape – right?

          • Frank

            The CCTV proved she was drunk and incapable in the kebab shop. 2 eyewitnesses confirmed her level of intoxication. A belief she consented does not make that belief reasonable – nor is the evidence vague nor marginal. I believe it to be cut and dried because it has been proved. It is not up for debate. He raped her

          • peterdavis

            ‘A belief she consented does not make that belief reasonable.’ In which case why was McDonald’s belief reasonable, since as you have said she was incapable?

          • Frank

            Because of the different evidence surrounding how both men came to be in the room.

          • peterdavis

            To clarify. She was not capable of giving consent to either, but McDonald had reasonable belief she was able to consent, because she’d met him in the street and gone back with him. But Evans did not have reasonable belief because lied to get into the room.
            So is it his lying to get into the room that has incriminated him? Because it is quite feasible he could have entered room, encountered the couple having sex, asked to join in, and been granted consent – which is what he claims.

          • Frank

            As the issue is whether or not she was able to give consent, his claim that she did is of no significance to the question of his guilt

          • peterdavis

            Are you saying that she was not capable of giving consent to either McDonald or Evans? If so why was McDonald acquitted?

          • Frank

            As before, reasonable belief of consent. Next time you ask the answer will remain reasonable belief of consent. In fact, that will remain the answer no matter how many times you ask.

          • peterdavis

            Frank, rather than repeating that, why not explain to us lay people why a man who spent a lot more time with an incapable woman was LESS likely to realize she was incapable?

            It’s as if you are stonewalling because you don’t like people asking questions.

          • Frank

            You ask questions that have been answered repeatedly. You seem to mistake not liking the answer for there not being an answer.

          • john cox

            >why not explain to us lay people why a man who spent a lot more time
            with an incapable woman was LESS likely to realize she was incapable?

            Peter, it’s because someone who steams straight in without checking is less likely to form a genuine and reasonable belief in capacity.

          • john cox

            >As the issue is whether or not she was able to give consent, his claim
            that she did is of no significance to the question of his guilt

            Well, that’s not true, is it? Obviously it goes to whether or not the defendant had a reasonable belief. Why are you posting such nonsense?

          • Frank

            Not really. Her slurring yes is not sufficient to argue your belief is reasonable given all other evidence.

          • john cox

            >Not really. Her slurring yes is not sufficient to argue your belief is reasonable given all other evidence.

            Of course it is. What’s the matter with you? It’s evidence. The weight to put on it is for the jury.

            There’s no evidence, incidentally, that the complainant was slurring her words. You just made that up.

          • Frank

            It’s not evidence. Both defendants gave a different version of events. There is no evidence either asked, let alone that she slurred yes, which would not alter either her capacity or the reasonableness of his belief.

            On the issue of slurred speech – booth sides agree a blood alcohol content of 2.5 times the drink drive limit. Slurred speech is almost a guarantee at that BAC.

          • john cox

            I don’t know what’s the matter with you. You don’t seem to know what the word evidence means. Anything told to the court is evidence. The weight to be placed on it is for the jury. The supposed ‘yes’ was sworn to by both defendants, as were lots of other acts of consent. The weight to place on that evidence was for the jury. It’s not difficult.

            I don’t know about slurred speech being ‘almost inevitable’ at that blood alcohol level. That hasn’t been my experience. I agree it was the expert evidence in the trial. But in any event, unless you propose that slurred speech is a definite indicator of loss of capacity, I don’t really see the significance of it.

          • http://www.minimanager.co/ Ix Techau

            This is the crux of the matter, really. McDonald walking free proves that it is not about the woman’s capacity of consent, it’s all about the man’s reasonable belief in whether she was capable or not.

            If the woman asks for sex, it’s reasonable to assume she’s not lying. It would be easy for her to just say “I’m tired” instead of “lick me out” or “fuck me harder”.

            The whole idea of a human being dismissed as incapable of making decisions, essentially excusing any kind of behaviour made during this state of incapability, is a dangerous road to go down.

            For example, if I’m drunk and say to a friend that they can have my mobile…is she then a thief if I’m considered drunk enough to be incapable of making decisions?

          • peterdavis

            Indeed, or if I drive a car drunk, am I absolved of drink-driving because I was too drunk to make the rational decision not to drive?

          • john cox

            >For example, if I’m drunk and say to a friend that they can have my
            mobile…is she then a thief if I’m considered drunk enough to be
            incapable of making decisions?

            In civil law the position is basically that your acts are not binding on you if you are too drunk to know what you are doing and the other person knows it. So, no, she’s not a thief, but you still own your mobile.

          • Jane

            There is no independent evidence that she said those words.

            Quite a few things about this don’t ring true to me.
            In most “chain” hotels the door to the room is not visible from the bed as you walk down a small passage (past the ensuite) to get into the room.
            So the first sighting the girl had of Evans was when he appeared around the corner of the passage after the door went “click”.
            Any woman in their right mind that saw a strange man appear in a hotel bedroom when engage in consensual sex would be to be alarmed and shout out “Who the Hell are you and what are YOU doing here ?!” – or words to that effect.
            According to the defendants she made no such protest, which seems very odd to me.
            Just my musings.

          • anneteak

            If it is not up for debate, why are you debating it?

          • Frank

            I’m not. I’m correcting idiots who think it is a debate.

          • peterdavis

            Heaven forbid people might want to debate a matter of national interest, or find out what substance Evans may have to believing his innocence – what ‘idiots’!

          • Frank

            So far you have questioned how one could be innocent and one guilty, and referred to evidence that was used by the prosecution as inadmissible – you contradict facts. That is not debate and one of the hallmarks of an idiot.

          • peterdavis

            No I am applying the 3-stage process as outlined above:

            3. there must not be a reasonable belief that the person consented.

            McDonald spent much longer with the incapable woman than did Evans, yet he had more ‘reasonable belief’ she could consent – how is this possible?

          • Frank

            You are aware Evans lack of interaction is actually what makes his belief unreasonable?
            You seem to lack ability in critical thinking.

          • anneteak

            Oh. Fabulous discourse!

            I’m an ‘idiot.’…

            .. . Such an an incisive and intelligent argument about this case.

            I’m surprised that you’re not a tip- top barrister with mental acumen like that.

          • Frank

            You are an idiot, yes. You are also a hypocrite. You wish to complain about my argument you could do with putting one forward of your own. So far you have done everything possible to avoid any form of rational debate – is it because you are not capable?

          • anneteak

            Hilarious…

            Can I use you are a role model of what a flailing and rather desperate poster is?

            What exactly in your post relates to the case?

            Why not just get back to posting something about that, rather than trying to convince yourself that I’m an idiot by parroting the word?

            Ps.

            Why not try calling me an idiot again?

            definition for of mental illness is repeating the same action interminably and expecting a different outcome.

          • Frank

            Still no sign of a rational argument. Are you incapable?

            PS – your definition of mental illness is actually the definition of insanity, neither of which applies to calling you an idiot, which you have again provided evidence of.

          • john cox

            C’mon, it’s ridiculous to say the evidence of capacity is not ‘marginal’

            >The CCTV proved she was drunk and incapable in the kebab shop

            Drunk, perhaps, incapable obviously not – she could buy and eat a pizza.

            >2 eyewitnesses confirmed her level of intoxication

            The kebab shop owner thought she was ‘very drunk’ 75 minutes before the relevant events. 6 minutes earlier she was sending perfectly spelled texts, and her friends were saying she was ‘not very drunk’ a little before that. That’s about as uncompelling as evidence gets.

          • Frank

            It isn’t marginal. You may want to look up the definition of marginal, then look at the case.
            She couldn’t even stand up.
            The night porter called her extremely drunk immediately before. A correctly spelled text requires you to hit approximately one in every 5 correct letters. Provide her friends statements.

          • john cox

            Well, perhaps you should look up the statutory test. It’s not being drunk, even extremely drunk. It’s having the capacity to choose to have sexual intercourse.

            From my own experience, I’ve fallen over through drink. I definitely had the capacity to choose whether to have sex. I’ve walked unsteadily and I’m sure I’d have walked a lot more unsteadily if I was wearing platforms. I still had the capacity to choose to have sex. I’ve drunk enough to put me 2.5 times the drink-drive limit, many times. According to the evidence in this case, I was probably slurring my words, though I’ve never noticed this in either myself or my companions. I still had the capacity to choose whether to have sex. One witness sees the complainant for thirty seconds and thinks she’s ‘extremely drunk’. Well, first of all ‘extremely drunk’ is not the statutory test, and secondly McDonald, observing the same and much more, reasonably believed she had capacity. I’ve been extremely drunk, walking around, and still had the capacity to choose whether to have sexual intercourse.

            It’s folly to deny that the evidence was marginal. My experience of life suggests to me that, at any rate as recorded by the Court of Appeal, it came absolutely nowhere near showing beyond reasonable doubt that the complainant who walked into the hotel didn’t have the capacity to choose whether or not to have sexual intercourse.

            I don’t have the friends’ witness statements, of course, and if I did then to publish them would be contempt of court. It may be that Evans’ website invented this entirely, of course, though I doubt it; exaggerated it quite possibly. But it doesn’t really matter; my point is that the prosecution didn’t even get close to the test as it is normally understood.

          • Frank

            It was proved she lacked the capacity of the test, and that will remain the case no matter how often you repeat yourself

          • john cox

            Of course it will, assuming that by ‘proved’ you mean that that was what the jury found. I am merely pointing out that your notion that the evidence was not marginal is absurd.

          • Frank

            It was proved. Your notion that it was somehow marginal is cretinous in the extreme

          • john smith

            Its a bit like convicting someone of drink driving by taking a breathe test 75 minutes before they get in a car!

          • http://footylaw.co.uk Footy Law Blog

            You say: “As you said, ‘It is likely they were also satisfied she could not consent to McDonald.’ So why wasn’t that rape? Surely it’s not down to what the man thinks, it’s down to the facts of the matter? If she’s not capable of consent, irrespective of what I might believe, it’s rape – right?”

            Not quite, the legal definition of rape, as set out in section 1(1) and 1(2) of the Sexual Offences Act 2003, states:

            (1) A person (A) commits an offence if
            (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis.
            (b) B does not consent to the penetration, and
            (c) A does not reasonably believe that B consents.

            (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.”

            And so there are three tests for a rape conviction to be secured:
            1. there must be penetration by penis;
            2. there must not be consent;
            3. there must not be a reasonable belief that the person consented.

            All three tests must be made. So it is perfectly possible for a jury to conclude that there was penetration by penis; that this was done without consent; but that the accused had a reasonable belief that there was consent.

            That is what the law states and is why it is perfectly reasonable – given the different circumstances of the two men – that two different verdicts were returned.

            I assume – it is the only logical explanation – that those people saying that if she was too drunk to consent she was too drunk for both and therefore the verdicts are unsafe – are not aware of the three-stage test and haven’t read the Sexual Offences Act 2003.

          • http://footylaw.co.uk Footy Law Blog

            It was a seven day trial. There was a lot more evidence than that.

          • http://www.minimanager.co/ Ix Techau

            All three clearly had enough alcohol in their systems to be incapable of making sensible decisions, I don’t see why the small confusion over who asked what is that surprising.

          • Frank

            It’s hardly small confusion. Its a material difference in their stories about a key question, meaning there is no evidence of it being asked at all – not that the question or the answer matters in a case where the question was whether she had the capacity to make that choice

          • anneteak

            There is no solid evidence about who said what.

            They can’t remember and neither can she.

          • Frank

            They do a fantastic job of describing, in detail, what happened for people who can’t remember.

          • peterdavis

            So they remember quite a lot but not everything, like people might during a alcohol-fueled evening – but because their memories were not perfect their evidence is inadmissible?

          • Frank

            Inadmissible? Do you actually know what the word means?
            Their evidence formed a large part of the case against him.

          • peterdavis

            But not the part where she asked him to ‘lick me out’ and ‘f*** me harder’.

          • Frank

            Doesn’t alter anything about the issue of consent.

          • john cox

            What on earth does that mean? Did you mean to say ‘capacity’?

          • Frank

            What on earth are you on about? The comment is pretty clear

          • john cox

            It’s pretty clearly nonsense, certainly. Obviously asking people to lick you out and f*ck you harder is pretty strong evidence that you have the capacity to choose to have sexual intercourse and have in fact chosen to do so.

          • Frank

            She did not have the capacity to consent. That fact will not change regardless of how often you repeat yourself

          • john cox

            That’s the jury’s finding. Obviously. If that’s all you want to say, say it and stop posting nonsense about how luridly expressed factual consent ‘doesn’t alter anything about the issue of consent’.

          • Frank

            No matter how often you repeat yourself, you will remain wrong.

          • Jane

            There is no corroborating evidence that she did say those words.

          • john cox

            >There is no corroborating evidence that she did say those words.

            No, of course not, though neither is there the usual complainant evidence that she didn’t, would never have said such a thing to strangers, and so forth.

            But I think, insofar as one can derive any meaning from Frank’s posts, he is discussing the hypothetical situation where they were said, and denying that it would affect the issue of consent.

          • Philip Giddings

            Neither does that prove beyond a reasonable doubt that either or both men failed to ask, or that the woman did not herself ask Ched for oral sex as he claims. This is why some of us think it’s likely that a different jury would have refused to convict on this evidence (for failure to obtain reasonable belief that she was capable of consenting to sex and so consented).

          • Frank

            The case centred around her ability to consent – you are aware that means that them having asked changes nothing about the case, even if you were to accept contradictory evidence as fact?

          • Philip Giddings

            Yes, her capability to consent and each defendant’s reasonable belief in that, and their reasonable belief that she actually consented to sex. What I’m inferring is that Ched and Clayton not remembering who asked for sex initially does not by itself prove they had failed to take reasonable steps to ensure she was capable of consenting to sex and so consented, as others were suggesting.

          • Frank

            If you wish to base your view on just this piece of evidence, go ahead. Cherry picking is a fallacy

          • john cox

            >you are aware that means that them having asked changes nothing about
            the case, even if you were to accept contradictory evidence as fact

            Of course it does. If we assume she lacked capacity and thus there was no true consent, the defendant asking and being told ‘yes’ goes to his reasonable belief that there was consent.

          • Frank

            It does not make a belief reasonable. It can be used to establish he held a belief, not that it was reasonable.

          • john cox

            I don’t understand what you’re saying. Nothing ‘makes’ any belief reasonable; it’s all just evidence going towards reasonableness.

            Having said that, saying ‘yes’ indicates pretty strongly that the complainant does in fact have capacity; after all she seems to think so. It’s going to be pretty seldom that a jury finds that there was no capacity but that the complainant has given factual consent.

          • Frank

            It was proved she did not have the capacity to consent. Slurring yes does not change that, regardless of how often you repeat yourself

          • john cox

            Absolutely right. Once it is found there was no capacity to consent, the most vigorous participation in sex imaginable cannot alter the fact there was in law no consent. It can however go to the question of whether there was reasonable belief in consent (and capacity).

            Whether ‘slurring yes’, or any other indication of consent, is sufficient to give the defendant a reasonable belief is a question for the jury in each case.

          • Frank

            There was no reasonable belief. Did you sleep through the case, or are you simply responding for the sake of it?

          • john cox

            >There was no reasonable belief.

            Well, only McDonald’s.

            I genuinely have no idea what you’re trying to say. Your point was that slurring yes was not evidence, or some such. I’ve refuted that. Now you start saying there was no reasonable belief, All that proves is that the jury rejected the evidence and/or didn’t belief that it was sufficient to give them reasonable doubt as to whether or not Evans believed he had consent. That doesn’t alter the fact it was evidence.

      • http://www.minimanager.co/ Ix Techau

        What you are insinuating is that the action of lying to get the key was a means to circumvent having to ask for consent. Why are you making that assumption?

        • Frank

          What I am saying is that lying to get a key card is evidence that he has not taken reasonable steps to establish consent. Because it is. It is evidence of deception.

          • anneteak

            Then in that case, the time when I lied to a receptionist to get two hotel keys..one for me, one for my husband …must imply that I was thinking of rape – because I’m deceitful?

          • Frank

            You’re certainly an idiot. Nothing that you said compares in any way to Ched Evans situation.

          • anneteak

            So we are down to abuse – rather than rational argument.

            That figures.

            And incidentally, I think you will find that I haven’t ‘ said’ anything.

            I’ve written it.

          • Frank

            Abuse? No – an evidence based objective opinion of your intelligence, based on your idiotic arguments is the accurate way of describing what I typed.
            You have since provided further evidence to back up my opinion with this post.

          • anneteak

            Your very keen to describe me as an idiot.

            Perhaps invest in a thesaurus.

            There are better insults.

          • Frank

            Its still not an insult so much as an evidence led objective opinion – maybe if you were capable of rational debate my opinion would change. Try it sometime.

          • anneteak

            IQ : 146

            …since your asking.

          • Frank

            I think you added the one by mistake – otherwise you would have the intelligence to actually discuss the case rationally – you clearly have not

          • GavinDrake

            Why would you need to lie to get two hotel room keys for you and your husband?

            I stay in hotels around 80 nights a year and have found no hotel that won’t give two keys if there are two guests in the room.

          • peterdavis

            As has been suggested here already, he may have wanted the key to go into the room and embarrass his mate, or to sneak a peek at them in the sack, or to tell him about the taxi waiting outside, or any number of things.

            Lying to obtain a key to a hotel room is hardly proof of intent to rape.

          • GavinDrake

            That doesn’t explain why you’d need to lie to get two hotel keys for a hotel room with two guests – which is the question asked in the post you are commenting on.

            As for “to sneak a peek at them in the sack” – that would be a breach of section 66 of the Sexual Offences Act 2003; why would he need to go to his room to tell him about a taxi waiting outside – he could have texted him or phoned in. In any event, he already knew that McDonald was already in a taxi. As for wanting to embarrass his mate – this was not Evans’ evidence. As with many people – and yourself many times on this blog – you are creating a fantasy defence to second guess the verdict of the jury.

            Ched Evans’ website says he went to the hotel because “he was curious as to who the girl with Clayton was and he wanted to find out.”

          • anneteak

            We have.

            As a family we’ve often been given one key ..and it’s annoying.

            It often depends on how big the hotel is.

            If you stay in chains it isn’t so much of a problem. In smaller places it is..but only sometimes.

            I used to stay in loads of different hotels throughout Britain, and ten years ago rarely happened. Now it seems to be on the increase for some reason.
            As are deposits on TV zappers.

            Probably security.

          • http://footylaw.co.uk Footy Law Blog

            So, in those circumstances, what lie to you tell in order to get a key?

          • Jane

            All the “chain” hotels I have ever stayed in over the past 20 years (Ibis/Premier Inn/Ramada/Hilton etc) give 2 magnetised keycards for a twin/double room.
            Whoever checks in first is given the two cards (unless you arrive together).
            Now, the CCTV footage that is available in the public domain shows McDonald and the victim walking straight past reception to the room.
            This would indicate to me that,
            a. he knew where the room was because
            b. he had already checked in at an earlier time and obtained the keys so
            c.he intended to have access to the room later.

          • john cox

            Well, that’s quite likely, isn’t it? It was booked for McDonald to sleep in – it’s pretty likely he’d already checked in and left his bags. I don’t understand what your point is.

          • Jane

            Sorry, lost track of my argument here. Missed a bit out.

            So how did the receptionist know which door to eavesdrop at? He did not know which room McDonald was going to.

      • peterdavis

        ‘1) It does not matter why he lied, the fact he lied to get into the room is evidence that he did not take steps to establish consent.’

        Someone could lie their way into a room, and then meet a person in that room who wanted to have consensual sex with them. It does not prove the sex was not consensual, just because deceit was used to gain access to the room.

        • Frank

          He was not invited to the room. He had no business being there. You are providing illogical arguments based on nothing but your wish he was innocent.

          • peterdavis

            No. I am saying that lying to get a key to a room does not prove intent to rape. Please prove that it does.

          • Frank

            What you said has no bearing on reality.

          • anneteak

            Whose room was it?

            Who paid for it?

          • Frank

            It was booked in Clayton McDonald’s name for Clayton McDonald to use – to any reasonably intelligent person that makes it Clayton McDonald’s room regardless of who paid for it

      • Philip Giddings

        Then Ched’s detractors can’t have it both ways, and say lying to get the key (avoiding hassle over hotel’s occupancy rules) and sneaking out of the building is evidence of guilty conscience, while arguing that he didn’t believe he had done anything wrong.

        • http://footylaw.co.uk Footy Law Blog

          I’m not sure what you’re saying.

          Evans’ evidence in this aspect is proof that he acted dishonestly.

          • Philip Giddings

            Yes, but not for sinister reasons. It isn’t even clear at the time he lies to obtain the key, that he wants to have sex with a woman whom he doesn’t known and has never seen.

          • http://footylaw.co.uk Footy Law Blog

            Dishonesty is sinister, or maybe not in your book.

          • Philip Giddings

            Wow, that’s millions of sinister sickies every Monday and Friday.

          • http://footylaw.co.uk Footy Law Blog

            It is sinister, if you’re the employer having to pay out as a result of such dishonesty.

          • Philip Giddings

            No one’s saying it’s acceptable to cheat employers. Several of us – see the discussion about the reasons people commonly lie to hotel staff to get room keys – don’t consider Ched’s reasons for doing the same are any MORE sinister than theirs.

          • http://footylaw.co.uk Footy Law Blog

            Nobody has given any reason why people need to lie, or do lie, to get a legitimate second key to hotel rooms.

          • Philip Giddings

            Correction: he stepped over her in the kebab shop but doesn’t know it’s the same woman in the hotel room when he collects the key. “I’ve got a bird” doesn’t tell him that.

        • Frank

          Lying to get the key and his reasoning are evidence of guilt, not guilty conscience

          • Philip Giddings

            Hardly. See the exhaustive discussion of the non-sinister reasons why people lie to get hotel keys. But it has been claimed that his use of the fire exit proves he knew he had committed rape, and that he believed his actions didn’t amount to rape. Both claims cannot be true.

          • Frank

            It really is evidence of his guilt. You may not like that, but you not liking it doesn’t stop it being true

          • Philip Giddings

            At least two of us have explained the reasons why people lie to obtain keys to hotel rooms that have nothing to do with intent to rape. You may not like that, but you not liking it doesn’t stop it being true.

          • http://footylaw.co.uk Footy Law Blog

            I’m sorry. But nobody has explained this at all.

            Somebody said that they lie to get a second hotel room key when staying with her husband. They were asked to explain why they need to lie, and what the line was, and they have not done so.

            Perhaps you can repeat it here in case I have missed it: why would anybody have to lie to a hotel receptionist to get a legitimate key to a hotel room for which they are entitled?

          • Philip Giddings

            That puzzled me, as Ched had booked and paid for the room. I believe it’s because the room was for two people, not three. As there were two people in the room already, the porter might have stopped him from joining them for fear of three people trying to cheat the hotel by occupying a room for two.

          • Jane

            This puzzled me too.
            If the receptionist knew there were already 2 people in the room then he would not have given Evans a key, because of hotel policies on multiple occupation.
            So, it could be reasonably supposed that
            the receptionist didn’t know what room McDonald was already in.
            It doesn’t explain why the receptionist got suspicious and listened at the door?

          • Frank

            At least two of you can explain anything you like – in fact, get 10 others to join you if you like. None of those reasons were put forward by Ched Evans, which makes it, factually, evidence against him in his rape trial. You can deny it all you want, all that happens if you do so is you lose further credibility that is already lacking from your side of the debate

          • Philip Giddings

            I see why you don’t like us finding more holes than Swiss cheese in the evidence against Ched. The fact he didn’t advance a case doesn’t mean there isn’t one. (BTW, have you ever seen a film called Twelve Angry Men? A classic example of a jury pursuing avenues that the Defence had failed to.)

            Clayton has texted “I’ve got a bird”. This doesn’t tell him who. He may have guessed but doesn’t know when he lies to get the keys. So at this point he doesn’t even know if he wants to have sex with her. Neither does he know if she is going to have sex with Clayton, or anybody. They might fall out, they might take longer to make progress, she might collapse on the bed and pass out completely; so might Clayton. Ched might be hoping to have sex with someone who’s appealing, willing, and ‘firing on all cylinders’, not half-dead to the world. He might be reserving all judgement and expectation until he sees Clayton’s “bird.”

            Yes, he’s an arrogant, impertinent prick, but all of this is a long way from proving intent to rape before he enters the room.

          • Frank

            The fact is, pal, you have found no holes in the case.
            The fact he didn’t advance it does, in fact, mean it does not apply to him.
            “I’ve got a bird” is not an invite.
            Him not knowing who is hardly a great argument for his belief of consent being reasonable – in fact, it is further evidence against him.
            Lying to get the keys to then let himself into a room where two people are having sex, without their knowledge or consent is itself a criminal offence.
            He can make a reasonable assumption as to what they are doing.
            Ched might be hoping anything he wants – he has no right to enter that room, he has no right to rape someone.
            Intent to rape doesn’t need to be proved – the simple act of rape proves rape

      • john cox

        > It does not matter why he lied, the fact he lied to get into the room
        is evidence that he did not take steps to establish consent.

        This is nonsense.Of course it isn’t. How could anyone possibly think it would make any difference to the question of consent what he’d told the night porter. If he’d told the night porter he was the Duke of Edinburgh and urgently needed a key because he was intending to meet Al-Qaida operatives in the room with a view to blowing up the Houses of Parliament? He arrived without warning to the complainant. As far as the issues go, that’s it. The rest is mud designed to prove he’s a Bad Man, which is a quasi-legitimate courtroom tactic, of course, but shouldn’t be confused with genuinely probative evidence.

        • Frank

          It really isn’t nonsense – it is evidence against the reasonableness of his consent. If that was his lie then he would be arrested and detained without charge under anti terror laws.

          • john cox

            >it is evidence against the reasonableness of his consent.

            You mean the reasonableness of his belief? How so? The question is whether the complainant (a) has capacity and (b) has factually given consent. You can’t reasonably judge the likelihood of that other than from the complainant’s point of view. He arrived in the room without warning. That’s all she knew. What Evans had or hadn’t done before that doesn’t affect the likelihood of her having capacity or consenting in the slightest, It’s just Bad Person evidence. All you’re doing is reinforcing my point that irrelevant Bad Person evidence has an influence which it shouldn’t have given it’s actual probative force.

          • Frank

            You’re a cretin. It was proved she lack capacity to consent.

  • Jakka

    If Clayton McDonald’s text meant come and have a go, then he pimped her. Evans let himself in to the room without her knowledge or consent. When we know there’s no way out of being raped, women often go along with it. There’s no choice because you’re in a situation you didn’t sign up for, and don’t know what’s going on. That may look like consent but is only survival during rape.

    • Philip Giddings

      All of that requires to be proven beyond a reasonable doubt and it wasn’t. You are right that “going along with it for survival” is a possible explanation of events because there is no proof that she specifically asked for or demanded sex (no need to do that if you’re just acquiescing for safety), and no proof that she didn’t. Neither is there proof of her state of mind at the crucial time because there were only two witnesses (if you believe her claim of amnesia) besides the porter, and forensic tests (blood-alcohol level, etc) were inconclusive. Hence, reasonable doubt.

      • Jakka

        actually there were more witnesses trying to film it from the fire escape

      • http://footylaw.co.uk Footy Law Blog

        It was for the jury, who decided the case based on all the evidence, to decide whether there was reasonable doubt; not for blog commenters who have not had access to all the evidence and are only listening to one side’s partial account of the evidence and issues.

        • anneteak

          I thought that the evidence of the hotel cctv was not presented.

          I may be be wrong on this point but if that is the case, it was not ‘all the evidence’.

          And if it was for the jury to decide ….and not for blog commentators, why are you blogging about it?

          It rather presumes that you feel entitled to present your view and yet others are not.

          • http://footylaw.co.uk Footy Law Blog

            Anybody can present their view. What I am not doing, however, is trying to come to my own verdict on the case – that is what I meant when I said that the question of whether the case was proved beyond reasonable doubt is one for the jury.

            Bloggers and others can have opinions. But some seem feel able to substitute their own gut-feeling verdict built on partial evidence for the jury’s carefully considered verdict based on all the evidence.

          • anneteak

            Ah.. Good old ‘gut feeling’.

            ….So necessary for a jury to make a considered verdict – when there is no solid evidence.

          • GavinDrake

            If there was no solid evidence the jury would not have been asked to consider a verdict

          • anneteak

            But gut-feeling is all it can be.

            The only people who who what was said are the three people in the room.

            As I have stated…all I know us that the evidence that I have read does not seem compulsive.

            If there us compulsive evidence, I’d be happy to change my mind.

          • Frank

            Even his propaganda site would correct you on that point. The CCTV, including that from the hotel, was presented as part of the prosecution case.

          • anneteak

            That’s an about turn..so you are saying that if something is on Ched Evans’ site, that we should believe it?

            What I want to read us the actual court case. Nit the after effects.

        • Philip Giddings

          While I applaud the high standard of debate being had here, I don’t think any of us is claiming that we constitute a body with legal authority! To coin a phrase, we are humble seekers after truth, trying to put together a jig-saw in which many of the pieces don’t fit. We come from different standpoints but we’re turning over stones regardless of what might lurk underneath them.

    • peterdavis

      ‘If Clayton McDonald’s text meant come and have a go’ – if indeed. But would it be unusual for a girl to text a friend saying ‘I’ve got a bloke’? – meaning, ‘wahaay, I have scored, lucky me?’ I’d say not. And it is just as likely this is what McDonald’s text meant. And when Evans came into the room, her consent could have meant ‘oh wow, the more the merrier, I’m in here!’

      It might not have meant any of these things, but they are as plausible as your explanation. Some women do like lots of sex, and aren’t that choosy – some don’t. We don’t know enough about the woman’s character in this instance to judge.

    • anneteak

      Its not clear that the text ‘I’ve got a bird’ means come and have a go.

      It could equally mean ‘I’ve got a bird ….so don’t come here as I’ll be busy’.

      We just can’t know intent from that text.

      • Jakka

        we don’t have to guess. What we know is that Ched Evans immediately redirected his taxi to fo there and let himself into the room. The facts are the point, not guessing.

        • anneteak

          That doesn’t prove intent to rape.

          An over protective mother might have done the same thing – redirect a taxi-,to stop him having sex with a woman of which she didn’t approve ….if she had had the same text.

          • Jakka

            oh please…

          • anneteak

            No need to beg.

          • http://footylaw.co.uk Footy Law Blog

            Ched Evans didn’t redirect the taxi to stop Clayton McDonald having sex.

            This blog is attempting to explore the issues from a legal perspective – not throwing out new conjecture that not even the two men involved are arguing.

            If you want to explore the legal issues and the facts of the case, please feel free. But please do not use this site for throwing up a fantasy defence.

          • anneteak

            I was using logic.

            We cannot know what the text implied.

            The text wasn’t explicit and could have been interpreted differently by different people. That’s the point.

            And if you want to stick strictly to the legal points – then why did you include opinion, rather than fact?

          • peterdavis

            The original comment in this thread: ‘If Clayton McDonald’s text meant come and have a go, then he pimped her.’

            This is speculation also, but I did not see you commenting on this as being ‘fantasy’.

            Do you only object to speculation from people who may doubt Evans’ guilt?

          • http://footylaw.co.uk Footy Law Blog

            I haven’t commented on every post (I can’t see every post); and I agree that the comment is speculation – it is also incorrect in law.

            But as daft as I found the comment it was not seeking to use fiction and falsehoods to persuade people that the original verdict is wrong.

          • peterdavis

            It was voicing an opinion on what ‘I’ve got a bird’ means.
            That could just as easily mean ‘lucky me I’ve scored’ or ‘I’ve got a bird so go away’ – we cannot know.
            Neither are ‘fiction and falsehoods’ – just interpretations.

          • http://footylaw.co.uk Footy Law Blog

            It wasn’t voicing an opinion on what I’ve got a bird means – it was suggesting that Ched Evans turned his taxi around to stop Clayton McDonald having sex – which is not something that Ched Evans claims.

          • anneteak

            I haven’t posted that he did,

            I’ve posted that the known text is open to translation via interpretation, which seems to be based on prejudice.

            So I showed by logic, that there was more than one interpretation.

            Since it that the text was stated basically to mean:

            ‘Come and join me because this bird is up for it’

            it is only fair to state that there could be other interpretations other than the one that was confidently stated to be true.

          • http://footylaw.co.uk Footy Law Blog

            Nobody knows what Clayton McDonald intended to happen. I haven’t seen his witness statement and none of the court reports I have seen mention anything about Clayton’s intention.

            What is fact is that the message said “I’ve got a bird” and Evans then turned his taxi round, lied to a hotel receptionist and let himself into the room.

            I’m not sure that any body has argued anything else (certainly nothing that would have a bearing on the case).

          • john cox

            >none of the court reports I have seen mention anything about Clayton’s intention.

            I don’t know where I saw it, but somewhere his (rather unimpressive) explanation is recorded that he didn’t want Evans to worry about the fact he’d disappeared.

    • Jane

      I would go along with the part of you post about “survival”.

      A victim being raped can be in a no-win situation. If they fight back they run the risk of being seriously injured or even killed.
      If she complies (out of fear/confusion/ignorance) then the view may be taken that, as she showed no evidence of “putting up a fight”, then she was complicit.

      • john cox

        In general of course, but in this particular case the complainant did know there was help on hand in the form of the night porter.

        The problem is that the normal prosecution evidence was lacking. Usually the complainant may well say that that was happened, but in this case, of course she was active yet unable to remember anything. I don’t recall another case like that.

        • Jane

          Hmmmmm, I am not sure she was “active”. as you put it.
          According to the night porter he heard a man and a woman’s voice, so we know she was not comatose.
          However, I would dispute she was engaged in “consensual and noisy sex.”

      • Jane

        Sincere apologies – I should have said “they” not “she” as both sexes can be victims of rape.

  • Dominic

    The blog takes it purely form a legal perspective, why because it has too. The jury made their decision based on witness evidence (themselves), videos and statement from the respective briefs. The conclusion must be there is no empirical evidence to confirm or deny that she did or did not consent. They are simply taking her word that Evans did not ask or she did not give consent and if she did or did not she was not capable any how of making that decision. I don’t see how they can come to that conclusion with out simply believing her and not Evans. Its quite sad that in a democratic country that purports to be a leading light in law that is allowed to happen. law is law but its no different than a kangaroo court if it believes beyond reasonable doubt on one character over another or more importantly that one character was too drunk to be consensual (some what subjective ….) This is a sad case for all and certainly for the criminal justice system itself. Sadly most people don’t understand law and the appalling judicial system we are led to believe is so great. No one knows what really happened yet the jury made a decision and everyone jumps on the band wagon that Evans is a rapist and must be damned. the jury could be wrong? they could be right? but beyond reasonable doubt, hard to believe. I say this with obviously not seeing any evidence but this trial with the acquittal of MacDonald does seem to be a shambles. I find it fascinating so many seem to think we in the uk should not question convictions and that a person is guilty and should accept without challenging, as said earlier law is only opinion …. therefore not confirmation of facts nor guilt especially when its he said / she said or subjectivity of a jury.

    • http://footylaw.co.uk Footy Law Blog

      There are a number of safeguards built into the system:

      Firstly, if there was no evidence to support the prosecution’s case, the Defence could have asked for an “old style committal” at the magistrates’ court. This would require the prosecution’s evidence to be read out and the magistrates would then have to decide whether there was a case to answer. If not, the matter would come to an end.

      Secondly, if at the end of the prosecution case at the trial, the Defence believes that the offence is not made out, they can apply for the case to be thrown out on the basis that there is no case to answer.

      It is the prosecution’s job to prove the charge. If, at the end of their case, they are in the position where there is no evidence to convict; then the case is over: judges will only allow cases to go to a jury where there is a case to answer.

      So arguing that “The conclusion must be there is no empirical evidence to confirm or deny that she did or did not consent” is not a valid legal argument.

      The prosecution must prove a case beyond a reasonable doubt – and they did.

      • Dominic

        I am sorry “the prosecution must prove a case beyond reasonable doubt – and they did” Your deference to the legal system is somewhat shocking. My point and the point of many reasonable people is to ask how the jury came to that decision. I appreciate we do not have the evidence at hand but we can assume the jury did … So they took the notion that in space of a man walking into a hotel room whilst two people were having sex that the woman involved was capable of making a consensual decision and was not inebriated enough to be incapacitated. 10 mins later she was the opposite. By any stretch of imagination it would be hard to provide evidence empirical / conclusively or here it goes “beyond reasonable doubt” that could be the case. The author has done a good job of explaining the case and the legal process and the arguments around it but seems to lack the basic judgement required to challenge other possibilities. The author seems to abide by the rule of law is law and that due process has been completed. The author is correct in everything he /she says but the inability / unwillingness to accept an opposing view or possibility of one is somewhat concerning. The authors argument is he / she does not need to argue the possibilities because a sound jury must have already done this therefore they would be correct … There is no point sifting through fact and fiction if the conclusion is that due process was completed correctly and state safe guards are / were in place. I am sure we could say the same in Russian, Zimbabwe or indeed the USA but decisions made by jury’s and judges still leaving justice wanting and that question in the case still remains unanswered beyond reasonable doubt ….

        • http://footylaw.co.uk Footy Law Blog

          The reason that I do not try to second guess the jury is because I do not have access to all the evidence that a jury had access to; only to what is on Ched Evans’ website and the Court of Appeal judgment; neither of which includes anywhere near all the evidence that the jury heard over the seven-day trial.

          We cannot ask how the jury came to their decision because the secrecy of their deliberations is absolute.

          However, you misunderstand the law when you write this:

          “they took the notion that in space of a man walking into a hotel room whilst two people were having sex that the woman involved was capable of making a consensual decision and was not inebriated enough to be incapacitated. 10 mins later she was the opposite. By any stretch of imagination it would be hard to provide evidence empirical / conclusively or here it goes “beyond reasonable doubt” that could be the case.”

          For a person to be guilty of rape, three tests must be proved:
          1. There was penetration by penis;
          2. That penetration was without consent; and
          3. The person doing the penetration had no reasonable belief that there was no consent.

          The different facts surrounding McDonald and Evans; it is easy to see how a jury could come to the conclusion in McDonald’s case that the first two tests were met; but not the third.

          Your argument (that if she had the capacity to consent to McDonald she must have had the capacity to consent to Evans) ignores this third stage of the test.

          • Dominic

            true but some what subjective on point 3? the question is did the defendant reasonably believe he had consent? The jury decided he didn’t again beyond reasonable doubt it’s hard to be sure. In some respects step 3 makes this worse. The judge said this in his summing up “the complainant was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realized that. hence Evans should have had no belief sex was consensual but 10 mins earlier McDonald must have had a reasonable belief sex was. The woman involved say she has no memory of anything If it is to be believed she had no memory how can McDonald be assumed to have reasonable belief his sex was consensual when judge had derived she was in no fit state to make consent and the prosecutions evidence was indeed the same argument. The jury went against expert evidence( for the defence) saying the memory loss could be contrived. The judge further went on to say “A complainant consents if, and only if, she has the freedom and capacity to make a choice, and she exercised that choice to agree to sexual intercourse.” So lets assume she did not give consent to either why is it still reasonable for Mcdonanld to believe he had consent. Was the jury saying well she was in my bed and therefore i thought that gave me the belief to have sex? We have two men here saying she consented willingly and was active. This is just another classic he said she said with no evidence empirical on either side regarding the act of consent / non consent hence the capacity / incapacity argument is important because it implied McDonald /Evans were moral or immoral in the act of having sex. Mcdonanld was morally to be correct in his belief he was entitled to be having consensual sex and Evans not. No one has explained why this was the case other than belief in one party over another. That’s just character assessment not conclusive evidence or beyond reasonable doubt. The jury needed to be sure that evans had no right to be believed. The jury ignored Evans defence of consensual sex and were led to believe the woman was incapacitated thus made a decision evans was incorrect in his belief. Again no evidence for or against just blind subjective belief !

          • http://footylaw.co.uk Footy Law Blog

            The judge did not say “the complainant was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realized that” in his summing up.

            If he had done it would have been a travesty of justice and the Court of Appeal would have had no hesitation in throwing it out.

            Summing up is what the judge does before a jury retires to consider its verdict. This question is one for the jury.

            The judge made those comments as he passed sentence – a judgment he had formed from a balance of the jury’s decision and his own judgment of the case having heard all the evidence.

          • Dominic

            Apologies! Wrong terminology, you are right. Nevertheless my points still stand. The crux will always be “beyond reasonable doubt” your faith in the system implies that because we r not privy to all the evidence the jury was correct. Let’s take those steps again.
            For a person to be guilty of rape, three tests must be proved:
            1. There was penetration by penis;
            2. That penetration was without consent; and
            3. The person doing the penetration had no reasonable belief that there was no consent.

            Step1 think the law has changed on this ie word penis ie gay marriage between 2 women. Nonetheless it’s not debatable.
            Step 2 debatable it’s he said she said no evidence offered other than here say, the prosecution got round this by saying the women was incapacitated again here say and debatable.
            Step 3 debatable so debatable in fact 1 man is convicted another not.
            Unless the evidence in the courts domain is so different than what we see on the web ( which may be) then surely to say anything beyond reasonable doubt is very difficult to achieve especially as no conclusive / empirical evidence given by either side. This an inherent flaw within the system and can easily lead to injustice. It could of quite easily have been found that the woman gave consent. To blindly assume that jury are correct as thousands have done in this case is concerning to say the least. Law has never been very good at dealing with opposing views without concrete evidence and never will until the barometer of beyond reasonable includes empirical evidence. We might as well fetch for a wise man under a tree.

          • http://footylaw.co.uk Footy Law Blog

            The law I quoted (the three-step test) was the law before Ched Evans case and remains the law now. It has not been changed. It remains the legal definition of rape.

            Any other form of penetrative sex assault (penetration with another body part of object) is a breach of section 2 of the Sexual Offences Act 2003 (assault by penetration) rather than section 1 (rape).

            If it is found that the woman gave consent then the conviction would be overturned.

            I am at a loss to understand your comment “To blindly assume that jury are correct as thousands have done in this case is concerning to say the least” – what I find disturbing is the thousands of people who, without having access to full evidence used at the trial, feel it is okay to second guess the jury based on a partial reading of selected extracts from the evidence.

            If we do not trust the courts, let’s get rid of them. We can then all just make our own judgment as to whether or not somebody is guilty of a crime and dispense our own justice. Actually, no. That really, really scares me.

            I prefer to stick to the legal freedoms enshrined in Magna Carta.

          • Dominic

            well there is finally our difference in opinion. You trust the courts … ? I don’t. I especially don’t without empirical evidence. It appears that you are some law apologist. You say you cant make judgement because you don’t have all the evidence etc this is just kop out . Can you make a judgement on Khodorkovsky, Tymoshenko, Hillisborough, Gerry Colon, Timothy Evans etc Your own lack of conviction to question renders our judicial system unquestionable you go on “if we do not trust the courts! should we ? should we trust unfailingly decisions based on subjective narratives? If 3 people are in a locked room it is quite obvious, is it not? a he / she said argument? no other witnesses? no scientific proof? and you still you trust? I don’t want to get rid of the courts i want to enhance them that’s all. Courts using DNA, Video evidence, fingerprints scientific / empirical evidence more of that please. Subjectivity, character assessments and judgments based with assumptions, is that afir trial oh Magna Carta, you mean No free man shall be seized or imprisoned. Or your subjective version of the Magna Carta. I think the courts do a lot of good but they also fail!! Better acknowledge this and change them that accept the status quo.

          • http://footylaw.co.uk Footy Law Blog

            “Can you make a judgement on Khodorkovsky, Tymoshenko, Hillisborough, Gerry Colon, Timothy Evans etc”

            No. I can have a gut feeling; but I wouldn’t begin to make a judgment without looking at the evidence.

            In relation to Hillsborough, an Inquest is going through the evidence to form a judgment; and inquiries are on-going to look at wider evidence (police corruption, perjury, etc).

            Last year the Independent Hillsborough Panel released a damning report on Hillsborough. I was there when the report was published.

            Despite this, it isn’t enough to form a legal judgment. If it was, there would not be a judgment.

            What you are arguing for is for us to do away with the courts and for everybody to impose their own verdicts. And that is dangerous.

          • Dominic

            i think i said the below. I don’t want to get rid of the courts i want to enhance them that’s all. Courts using DNA, Video evidence, fingerprints scientific / empirical evidence more of that please. Subjectivity, character assessments and judgments based with assumptions, “I think the courts do a lot of good but they also fail!! Better acknowledge this and change them than accept the status quo.”

          • john cox

            >Last year the Independent Hillsborough Panel released a damning report on Hillsborough.

            I can’t resist saying what a marvellous comic touch it was for the government to call the panel the Independent Hillsborough Panel, and then invite Phil Scraton to write its report. There is no-one, literally no-one, in the land whose findings on that subject would have been more predictable.

          • john cox

            Which, incidentally, is a fine example of the sort of rubbish judges spout when they are passing sentence. It’s absolutely absurd to say that Evans ‘must have realised’ the girl was too drunk when he arrived. McDonald had just spent fifteen minutes in her company and hadn’t realised it, according to the judge, and reasonably so, according to the jury (or at least the CA’s interpretation of the jury’s finding). What possible basis could there be for saying that Evans ‘must have realised’ immediately if McDonald reasonably failed to do so in fifteen minutes? It wasn’t implicit in the jury’s finding, and there was no reason to think it was true at all, and every reason to think it wasn’t.

          • Jane

            Let us not forget that after McDonald left the room he said to the receptionist words to the effect of “Look after the girl in Room 16, she’s sick”. So it seems he left his mate having sex with a woman he considered sick (sick enough for him to think he should mention it to the receptionist) and did nothing about the situation.
            This isn’t illegal but says a great deal, IMO about his character.

          • john cox

            I am reminded of the famous Ashley Cole kiss-n-tell, where the lovely lady who was describing events in the News of the World or wherever it was famously said that AC left the bed to be sick before returning to the job. The general opinion seemed to be that it showed what a cad Cashley was, but then we all hate Cashley, of course.

  • http://davidaslindsay.blogspot.co.uk/ David Lindsay

    http://lanchesterreview.blogspot.co.uk/2015/01/a-most-unworthy-dreyfus-by-david-lindsay.html

    But don’t overdo it: she was 19 and he was 22. You are turning him into a most undeserving Dreyfus.

  • peterdavis

    Can somebody tell me if the law has changed in regard to the following statement, taken from a BBC article in 2007 – I ask because it clearly has relevance to the Evans case:

    “However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so this would not be rape.”

    Here is a link to the article:
    http://news.bbc.co.uk/2/hi/uk_news/6497889.stm

    Has the law subsequently changed?

    • http://footylaw.co.uk Footy Law Blog

      No. The law has not changed since then.

      You appear to be ignoring this part of that quote: “…but nevertheless remains capable of choosing…”

      This issue of capacity to consent was addressed by the trial judge in his summing up to the jury; and by the Court of Appeal; and was one of the key issues in this case.

      You have said a lot about this case, Peter. Have you actually read anything? I ask because this point is explained in this blog post and in the Court of Appeal judgment.

      • anneteak

        The court of Appeal document does not present all the evidence.

        It’s the selected highlights to match the ‘new evidence ‘ points.

        • http://footylaw.co.uk Footy Law Blog

          I know it doesn’t present all the evidence; but it does address the issue of capacity to consent.

          • anneteak

            I like to read all the evidence.

            Perhaps you only like to watch the edited highlights of a football match instead of the entire game?

          • http://footylaw.co.uk Footy Law Blog

            I really do not understand the point that you are making.

            Of course I like to read all the evidence as well.

            I’m often in court to see and hear full trials. From this I know that what is reported in the public domain is just a tiny fraction of what goes on in court (a newspaper report of a trial may only cover less than five minutes of that day’s hearing).

            But we don’t have all the evidence – the court and jury did.

          • anneteak

            Exactly.

            That is why I am saying that anyone offering a gut-feeling on partial evidence is on sticky ground.

            What I am saying is the evidence, as its publically presented, is not compulsive.

            That’s why there are so many arguments about who said what to who and why.

            It’s extrapolation, with added personal view, of partial evidence.

          • http://footylaw.co.uk Footy Law Blog

            The only people offering a “gut feeling on partial evidence” are Ched Evans’ supporters who are second-guessing the jury and ignoring the decision of the court and the Court of Appeal.

          • anneteak

            They can’t be second guessing the jury’s decision.

            They know the result.

            They can, however, disagree with it.

            Which they are entitled to do in a democracy….as you are entitled to agree with it.

            Try repeating:

            ‘Je suis Charlie’ … and see how that feels.

          • http://footylaw.co.uk Footy Law Blog

            You are getting more and more pathetic with each post. I really can’t be bothered to engage with you anymore.

            You are, of course, entitled to disagree with the jury’s decision. You are even entitled to express your opinion.

            But when you do that on a law blog, expect to have your judgment called into question when you do not back up your belief with legal reasoning.

          • Dominic

            Law apologist! Anneteak. I personally have no support for Ched Evans and certainly not rapists. The fact the blogger hides behinds “I don’t have the facts nor the evidence to make my own decision implies he accepts the result of guilty as absolute. The blogger might as well not bothered with the blog. Instead of just wrote “we accept the jury’s decision and with no evidence to hand we cant say anything to the contrary”. Its poor to say the least. Every time i make a suggest concerning whats debatable the blogger deflects by saying the jury took that under consideration. The blogger therefore implies every decision ever made is correct because the jury must have considered the case and without information to hand there is nothing any one can do about it knowing full well of course, the real information will never come to light as it protected by the court. Any one who knows anything about miscarriage of justice knows that it very rarely comes through the courts (why would it – it only makes the judicial system less worthy) If the blogger cant accept an alternative view point or accept that even the possibility of certain aspects of this case are highly contentious / debatable and more importantly that these particular cases or fraught with subjectivity then its a sad indictment of our society. Ched Evans is an convicted rapist he may not well be a rapist. He may be a convicted rapist and be rapist what is clear this blogger is unwilling to debate the former. No debate, ” Je ne suis pas Charlie”

          • anneteak

            Yup.

            …Off now…

            Thanks for the discussion all but it’s really down to worrying a invisible sore now.

          • http://footylaw.co.uk Footy Law Blog

            This is a legal blog.

            If you wish to put forward legal suggestions then I am happy to debate them with you or anybody. What I’m not content to do is debate conjecture and the fantasy defence that is now springing up with pro-Evans’ supporters putting forward a version of events that isn’t even being put forward by Ched Evans.

            An exploration of the law is just that: Evans has been prosecuted and convicted. Four Appeal Court judges have considered his request for appeal and rejected it – and given their reasons for doing so.

            That is law. That is something that is known. That is something we can debate. Putting forward this could have happened, that could have happened, I don’t believe X, Y or Z does not really have a place on a law blog because most of what is being said is being said with no law or evidence to back it up.

          • john cox

            >If you wish to put forward legal suggestions then I am happy to debate them with you or anybody.

            Well, go on then. I’ve told you why the CA miss the point in paragraph 20; I’ve told you exactly what point of law they glossed over, and why that ought to have led them to set aside the conviction. Why do you disagree?

          • john cox

            Come now!! Plenty of people are offering their gut feeling that the jury’s decision was correct based on partial evidence.

          • http://footylaw.co.uk Footy Law Blog

            No. People are accepting that the jury was entitled to reach a decision and are happy to accept the jury’s decision unless new evidence comes to light to render that decision unjust. That is the legal position.

            What I object to is people saying that, in their view, the jury was wrong; when those people saying that are doing so without the benefit of hearing the full case and without sight of the full evidence presented to the jury; instead, they are reaching this conclusion based on the defendant’s partial selection of evidence on his own website and on their own fantasy defence that they are concocting because they do not wish to accept that the verdict is correct.

            The CPS are unable to create a website where they put their own selection of evidence out and invite people to “judge for themselves”.

            The rule of law is that decisions of guilt or innocence are decided in courts. The rule of the mob is that decisions of guilt or innocence are decided by the public reading websites: that latter version is dangerous.

          • john cox

            > People are accepting that the jury was entitled to reach a decision and
            are happy to accept the jury’s decision unless new evidence comes to
            light to render that decision unjust.

            You may be doing that. It’s beyond dispute that lots of anti-Evans people are stating their opinions about what happened and also stating that their own opinion is that it was rape and it’s disgusting and so forth.

            >and on their own fantasy defence that they are concocting because they do not wish to accept that the verdict is correct.

            Unimpressive, if directed at me. People write articles in legal journals all the time explaining why in their view Court of Appeal decisions are wrong. I had a QC describe a CA decision as ‘wrong, of course’ to me only last week. You would do better to say why you don’t agree with my argument, if you can.

  • J. Martin Stafford

    The blog highlights the different circumstances in which the two co-defendants came to be present in the hotel room. Evans arrived later in response to a text message from McDonald. He let himself into the room and brought with him a small voyeuristic entourage. The girl may or may not have consented to this. There is no evidence either way. However, all these factors are irrelevant and certainly do not render his conviction safe or even go any way to supporting it. He was convicted on
    the grounds that the girl was too inebriated to consent. Common sense dictates that if she was too drunk to consent to copulate with Evans, she must also have been too drunk to consent to copulate with McDonald only a few minutes earlier.

    A court has ruled that there was no inconsistency in the disparate verdicts. Strictly speaking, this is true. It is LOGICALLY possible that her state of intoxication changed very rapidly, but, as a matter of FACT this is so highly improbable – almost to the point of impossibility – that without the strongest empirical evidence, no reasonable person would believe
    it, and no responsible jury would convict. The disparity in the verdicts
    must be regarded as perverse. The Irish Lawyer Stuart Gilhooly has described the outcome as ‘bizarre’. I whole-heartedly endorse his view.

    • Julie

      The jury have accepted that she was less drunk when she entered the taxi. Why was she going to the hotel room with McDonald? The evidence demonstrates she had deteriorated significantly in the hotel room but in the case of McDonald implied consent may have been established BEFORE entering the room. It’s enough to cast reasonable doubt over the charge against him specifically.

      With Evans there is no such doubt and we know the extent of her drunkenness after he entered the room ‘she was sick’ and the night porter ‘should watch out for her’.

      • anneteak

        Love the word ‘implied’ there.

        Was it in the evidence?

        It’s either ‘yes’ or ‘no’.

        That’s what this whole case was based on.

        If Ched Evans had said:

        ‘Yes we had sex because it was implied, rather than stated’ it would have a very short case.

        • http://footylaw.co.uk Footy Law Blog

          We don’t know why the jury reached its decision. We can only make educated guesses based on the law and our limited knowledge of the evidence.

      • J. Martin Stafford

        Her conduct – by determinedly travelling with McDonald in the taxi to the hotel – did indeed imply that she had consented to what was likely to take place. But if her state deteriorated significantly, she MIGHT have lacked the capacity to consent by the time they reached the room and began copulating; in which case would not McDonald have been as guilty as Evans? A person might consent NOW to do something in an hour’s or even a month’s time, but lose the capacity to consent before that time has elapsed.

        Is prospective consent sufficent, or must one actually have the capacity to consent at the time of the event? To my mind, the latter seems more reasonable. I would feel far more comfortable with the disparate verdicts if it could be established beyond doubt (which i think is impossible) that the girl’s capacity to consent changed significantly between her session with McDonald and her session with Evans only minutes later. This – it seems to me – is why the conviction must be seen as unsafe.

        I do not condone for a moment what happened on that night. All three participants – and to a less extent the onlookers – were squalid little beasts who should feel profoundly ashamed of what they did. Ched Evans is the only one to have been formally punished, and – so far as i am aware – the only one to have expressed any remorse, If the malign forces now ranged against him have their way, his punishment will be interminable, as they would deny him the chance of ever resuming his career at any time in the future. I do not think this is right; which is why i am firmly on his side in his quest to clear his name of the conviction for rape and to be restored to his profession.

        • http://footylaw.co.uk Footy Law Blog

          But it isn’t solely down to the capacity to consent. In English law the prosecution must show that the defendant did not have a reasonable belief that consent existed.

          It is the different circumstances between McDonald and Evans that leads me to believe that this is why the jury came to different verdicts – but we will never know.

          Where I do agree is that none of the three emerge covered in glory. But, as I say in the blog, even “sluts” are entitled not to be raped.

      • john cox

        >The evidence demonstrates she had deteriorated significantly in the
        hotel room

        No, it doesn’t. There isn’t any evidence about that at all.

        >but in the case of McDonald implied consent may have been
        established BEFORE entering the room

        This is wrong in law. Consent has to last up to the relevant time. If she said ‘let’s go and have sex’, and then became incapable between that time and sex starting, that would still be rape.

        • Julie

          Testimony from Mr McDonald and third party testimony from the receptionist states she was sick and required looking out for (sought by the former from the latter). She was clearly in a very bad way by then.

          I wasn’t aware of that and can’t find any reference to it in the 2003 act at least. Can you provide a link or reference to where this is explicitly stated?

          • john cox

            Hmm. I thought that was trite law. There’s nothing specifically in the Act about it I can see, though, so maybe I’m wrong, and if so I apologise. It may of course have been establihsed in case law, but I don’t have any text books here.

            I have an idea that I’ve read somewhere that McDonald’s explanation for that was that he knew the girl would be hung over in the morning and that she didn’t have her handbag, and that ‘sick’ was a shorthand for that. But I agree it would be interesting to read a transcript of his cross-examination about that; this was in my view the most difficult – indeed the only difficult – piece of evidence for the defendants (of those in the public domain).

            Worth remembering, though, that the jury found that McDonald reasonably believed the complainant had capacity, whatever he said to the night porter.

          • john cox

            >That’s your interpretation of which section of which act?

            I suppose section 1(1) of the Sexual Offences Act. If a complainant is shown to have agreed to go back to a hotel room for sex and at that point has the capacity to make choices, but in the taxi she loses consciousness, surely we don’t think that the man is entitled to carry her into the hotel and penetrate her unconscious form on the basis of her earlier consent, do we?

            >If she agreed
            to sex before losing capacity that would never result in a conviction as
            that would constitute ‘a reasonable expectation of consent’ as the
            judges stated would be necessary.

            I’m not sure where ‘expectation’ comes from. There has to be a reasonable belief that consent has been given. In the example above I don’t think there would be much chance of establishing a reasonable belief assuming the consent was in fact invalid, since the reasonable man is supposed to know the law.

          • john cox

            Actually, that’s literally speaking a bad example, because if the complainant were actually asleep or unconscious section 75 would come into play. But still, say the complainant starts to lapse in and out of consciousness, vomit, lose the ability to speak coherently, and so forth. Would it really, even in principle, help a defendant to refer to consent given back when the complainant was capable?

          • john cox

            > If she agreed to sex before losing capacity that would never result in a
            conviction as that would constitute ‘a reasonable expectation of
            consent’ as the judges stated would be necessary.

            Having consulted with a genuine expert in this area, I find that there’s plenty of case law about this. Basically, the answer seems to be that it’s a question of construing the consent itself and whether it was intended, explicitly or impliedly, to survive a subsequent loss of capacity.

    • http://footylaw.co.uk Footy Law Blog

      I haven’t seen Stuart Gilhooly’s comments and don’t know if he was basing his view on Irish law or English law.

      As for this oft-repeated point that if she was sober to consent to McDonald she must have been sober to consent to Evans; as I have said elsewhere – it is not just about whether or not she lacked the capacity to consent; it matters whether the defendants had a reasonable belief that consent existed (see section 1 of the Sexual Offences Act 2003).

      • J. Martin Stafford

        Whether or not something is ‘bizarre’ is not dependent on the idiosyncrasies of any particular legal system. If you contact me directly i will send you a Word document of what Stuart Gilhooly posted on the Irish PFA website on 18 November 2014. Obviously, both defendants must have maintained that trhey did hold such a belief.

        • http://footylaw.co.uk Footy Law Blog

          Actually, it is entirely dependent on the particular legal system.

          A verdict cannot be described as bizarre if it is accordance with the statute and common law in force in that jurisdiction.

          If somebody disagrees with such a law they can describe the law as bizarre (a political judgment) rather than the verdict as bizarre (a legal judgment).

          I have found a news report about Mr Gilhooly’s article. In it, he says: “If having sex with a drunk woman is rape, then thousands of men are guilty of rape every day… degrees of intoxication are a very difficult concept for young men to grapple with when they themselves have had plenty to drink.”

          In Ireland, neither the Criminal Law (Rape) Act 1981 or the Criminal Law (Rape) (Amendment) Act 1990 contain (so far as I could ascertain having had a cursory glance through them this afternoon) contain any reference to the capacity to consent.

          In England, section 74 of the Sexual Offences Act 2003 states that “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

          Mr Gilhooly may well feel that “degrees of intoxication are a very difficult concept for young men to grapple with”. If he wants to do something about that he can lobby the British Parliament to change the law.

          What I find bizarre is that a lawyer calls into question a verdict as “bizarre” when that verdict is fully in accordance with the law of the jurisdiction concerned.

          I note that the PFAI have removed the article from their website saying that it may have represented his view; it did not represent their view.

      • john cox

        >As for this oft-repeated point that if she was sober to consent to McDonald she must have been sober to consent to Evans;

        Well, that would be true. People who say that simply haven’t read the CA judgment, however. Obviously the conviction must have been based on the view that she wasn’t sober enough to consent to either of them.

  • http://www.minimanager.co/ Ix Techau

    I think the problem here is that the blog author seems fully convinced that the legal system is 100% perfect, and that the conviction proves beyond any doubt that Ched Evans raped a girl.

    McDonald wasn’t convicted of rape, so obviously the court felt that up until he left the room the sex was consensual, and the woman was sober enough to make decisions. For some reason, as soon as the friend left the room, the woman became incapable of making sober decisions.

    Also worth remembering that Ched Evans didn’t force himself upon someone against their will. He didn’t attack her. His crime wasn’t forcibly raping someone. His crime was poor judgement, and perhaps bad timing.

    I’d like to know whether the blog author thinks OJ Simpson killed Nicole Brown or not, seeing as a jury decided he didn’t. I know they are very different cases in different countries, but it’s just the most famous example of how the legal system can be manipulated to reach the wrong conclusions.

    • http://footylaw.co.uk Footy Law Blog

      I don’t know whether OJ Simpson killed Nicole Brown. I didn’t study the trial in depth and I am not an expert on American law.

      You say of Evans that “His crime was poor judgement, and perhaps bad timing.” No. His crime was rape, as determined by the court.

      You appear to be unaware of what the law of rape is. The case is not, and never has been, that “McDonald wasn’t convicted of rape, so obviously the court felt that up until he left the room the sex was consensual, and the woman was sober enough to make decisions. For some reason, as soon as the friend left the room, the woman became incapable of making sober decisions.”

      For rape to occur (section 1, Sexual Offences Act 2003) three things must happen:
      1. Penetration by penis;
      2. without consent; and
      3 without reasonable belief that consent exists.

      It is not just about the first two points.

      • peterdavis

        Was she capable of consent with McDonald, or was she incapable but he had ‘ reasonable belief’ that she was capable?

        If it is the latter, would he not have had more time to determine that she was incapable, having spent more time with her (on the street, in the taxi, etc)?

        Evans could not have been with her for very long before having sex with her, so would he not be LESS able to determine that she was incapable – and more likely to assume she was, since she was already having loud consensual sex with McDonald?

        • GavinDrake

          Again, you are using conjecture to try to reach a different verdict that the jury reached.

          • peterdavis

            I’m asking questions about things that seem inconsistent. What do you think is illogical about what I said?

        • john cox

          What you say is logical in a way, but the jury has to take account of the steps the defendant took to establish consent.

          Having said that, given that (i) if Evans’ own account was true he would presumably have taken reasonable steps, and (ii) there was no evidence to contradict it, it’s quite hard to understand how the jury could find beyond reasonable doubt that he didn’t take reasonable steps.

        • Jane

          Where is the proof that she was having “loud consensual sex” with McDonald?

          • john cox

            You’re right, the audible sex was with Evans, according to the CA.

      • http://www.minimanager.co/ Ix Techau

        I didn’t ask if you knew OJ Simpson killed Nicole Brown or not, I asked what you think happened. Are you willing to admit that the jury could have made a mistake in that case?

        I am aware that the jury found McDonald to have a reasonable belief that consent existed, and Evans didn’t. That is the opinion of the jury.

        But that is the problem. McDonald penetrated the woman, and continued to do so after Evans entered the room. Did McDonald still have reasonable belief the woman consented at this stage? The answer is yes, as he wasn’t convicted of rape.

        Surely you see the problem where you can deem one man in a threesome to be raping the woman in the middle, whilst thinking the other man is not raping her.

        The case then boils down to poor judgement and timing, as I said. Ched Evans failed to identify the lack of consent (poor judgement) and failed to stop having sex at the same time as McDonald (timing). He is therefore a rapist.

        As a woman I think the punishment for rape should be severe and merciless. But I also think that the definition of rape is ridiculous.

        As it stands, I can, whilst having sex with my long-term partner, get light-headed and become disorientated…and if my partner makes ONE more thrust, he could now be convicted as a rapist if the jury thinks he knew I was disorientated.

        • http://footylaw.co.uk Footy Law Blog

          I don’t know what happened in the OJ Simpson case. I have been around sufficient cases, criminal, civil, and administrative, to know its wise not to try to come to conclusions without seeing the evidence. I haven’t done so and so I have no opinion on it. Any opinion I come to would be baseless.

          The situation in this case could not be described as “a threesome” – a term which involves three partners engaging in sexual activity at the same time. Also, a threesome suggests consensual activity.

          You correctly say that “Ched Evans failed to identify the lack of consent” but describe this as poor judgement. It isn’t poor judgement; it is rape.

          And no, your partner could not be prosecuted, yet alone convicted, if he made “one more thrust” after you become disorientated during consensual sex with you.

          Firstly, disorientation does not prove a lack of capacity; and secondly there are, of course, cases where people have died during sex.

          There would be no prosecution even in those circumstances unless the person continued after it was clear that the partner had died – and by continue, the CPS would require evidence of a lot more than “one more thrust” to bring a case.

          • http://www.minimanager.co/ Ix Techau

            It’s clear that you are trying to wriggle your way out of the OJ Simpson question, because you know that the correct answer (yes, he did kill Nicole Brown and her lover) means the justice system isn’t as perfect as you think it is, and therefore there is a chance that Ched Evans is innocent, regardless of what conclusion the jury reached.

            Of course they had a threesome. Ched Evans walked into the room, someone suggested he’d join in, and he did. How is that not a threesome?

            Fainting does not prove a lack of capacity? I’m unconscious, but still capable of having consensual sex? How many thrusts is acceptable before it’s classified as rape? See, this is the problem. There are vague lines that a jury needs to decide have been crossed, and if they happen to decide in one way, Ched Evans is now a rapist. If they had decided the other way, he would be innocent. Let’s not pretend that 10/10 jurys would have found him guilty, especially not with as many question marks as there are surrounding this case.

            Fact is, neither you, nor I, nor the jury knows whether the girl was incapable of making decisions or not. And if we don’t know that, you can’t prove beyond reasonable doubt that he is guilty.

            What is your opinion on the tweets the girl sent out before the trial claiming she’s gonna win big and treat her friends to party vacations for the money she’ll get? Is that consistent with a rape victim? How about the Facebook messages that conveniently disappeared? How about the fact that the girl claims she didn’t drink much more than she usually does, it’s a pretty convenient blackout, no?

          • http://footylaw.co.uk Footy Law Blog

            I’m not trying to wriggle out of anything. If that is clear to you it is because you didn’t read, understand, or believe my very clear explanation that I do not come to judgements on things based on internet frenzy or public opinion (lynch-mob mentality) but by considering the evidence and the law – something that I have not done in the case of OJ Simpson.

            The Twitter messages do not reference the rape case; I have spoken about what I am going to do when I win the Lottery or when my rich Uncle I don’t know I have dies – many people do. It has no bearing on the case.

            In any event, a victim of crime will not “win big” as a result of a criminal conviction (hard to prove) but through a civil action (easier to prove).

            And there is no point taking somebody to a civil court after securing a criminal conviction because the cost of defending a criminal case is likely to wipe out any assets the person may have to pay any civil award of damages.

            The Tweets have no bearing on the case and are meaningless – no matter how much Ched Evans and his supporters wave them around as a smoking gun.

            As for the “deleted Facebook messages” – Evans’ website states: “On the night in question, the complainant had lost her mobile phone which was in the handbag that she left outside the kebab shop, so her only means of communicating with her friends was via her Facebook page.”

            And how on earth did she access her Facebook page in the hotel without her phone?

            Evans’ website goes on to say: “Facebook messages that she sent and received during this period of time were deleted by her” – What do they mean by “during this period of time” – the time that she was in the hotel or a longer period of time?

            Not having access to somebody’s messages – whether a Tweet, Facebook, or old fashioned postal letter – proves nothing about what those messages may or may not have said; yet alone any interpretation that people want to put on them.

            As for the legal definition of rape – that’s been explained, many times; and is clear to most people. If you don’t like it argue about it on a politics blog.

          • john cox

            >On the night in question, the complainant had lost her mobile phone
            which was in the handbag that she left outside the kebab shop, so her
            only means of communicating with her friends was via her Facebook page.”

            >And how on earth did she access her Facebook page in the hotel without her phone?

            In fairness, I take that to mean that she had lost her phone on the night in question, and that for a period of time thereafter she had to commincate via Facebook (first world problems, hey)

            >Not having access to somebody’s messages proves nothing about what those messages
            may or may not have said; yet alone any interpretation that people want
            to put on them.

            That’s true, obviously. I suspect the suggestion may be going to be that the police should have made more effort to help the defence get hold of them. I agree though that it will be surprising if this sort of argument succeeds.

            >As for the legal definition of rape – that’s been explained, many times; and is clear to most people.

            It really isn’t, you know. Really not. Try this, for example

            http://www.pbs.plymouth.ac.uk/PLR/vol3/Scott%20Diss%20final.pdf

            Section 74 (the section on the meaning of consent) ‘positively sprouts uncertainties’, say two of the foremost scholars in the field.

          • http://www.minimanager.co/ Ix Techau

            “I do not come to judgements on things based on internet frenzy or public opinion (lynch-mob mentality) but by considering the evidence and the law”

            A jury came to the conclusion that OJ Simpson was not guilty of murder. You have already made it clear that in your opinion, a jury decision is always 100% correct, so that must mean that you firmly believe OJ Simpson didn’t murder Nicole Brown and her lover.

            The fact that you can’t even admit to the possibility of a jury making the wrong decision is ridiculous, to be honest. Your argument in the OP and throughout these comments all fall back to “but the jury has decided”, in an attempt to avoid any rational debate. It’s the easy way out.

            The fact is: we don’t know what happened in that hotel room. We don’t know if the woman was sober enough to consent to sex. The jury made a guess, based on evidence. But they still don’t *know*.

            Is he a convicted rapist? Yes. Did he actually rape someone? No one knows, except Ched Evans himself, and the woman in question.

          • http://footylaw.co.uk Footy Law Blog

            You should really stop trying to interpret what people mean when people have already said what they mean in plain English.

            I have never, ever, said that a jury can’t be wrong. What I have said is that juries hear all the evidence and I won’t say that they got it wrong based on a partial summary of a very small part of that evidence.

            I often sit through hearings in their entirety and then I do make a decision. More often than not it accords with the decision made by the jury – or the judge (I sit through civil cases too); occasionally they did not.

            READ THIS VERY CAREFULLY: I have not said that OJ Simpson didn’t murder his wife. I said that I do not know and that I will not make a judgement because I have not seen the evidence.

            I really do not know how much clearer that can be.

          • http://www.minimanager.co/ Ix Techau

            Good, so we agree: juries can make mistakes. So why then are you 100% convinced Ched Evans raped someone? Is there no doubt at all in your mind? Juries can be wrong, remember.

            As everyone has pointed out, it’s clear you are quite biased in this case. There is a clear anti-Evans agenda here, we all see it. I’d like to know why. If you have truly read through the case, then you would know that there is enough reasonable doubt to cast a huge question mark on this whole ordeal.

            Douchebag? Yes. Rapist? Who knows.

          • http://footylaw.co.uk Footy Law Blog

            Everyone has not pointed out that I am biased – only a few of Ched Evans supporters and rape apologists.

            There is no “anti Evans agenda”. I merely come at it from the point of view that the police gathered the evidence and thought that there was sufficient to pass to te CPS for consideration.

            The CPS thought that there was a realistic prospect of conviction.

            Ched Evans’ own lawyers thought that there was a case to answer (I haven’t read that they asked for an old style committal (if these are still possible); or argued that there was no case to answer).

            The trial judge thought there was sufficient evidence to pass to the jury.

            The jury thought that the case against Evans was proved beyond reasonable doubt.

            The Court of Appeal – including one of the country’s most senior judges, the Lord Chief Justice – thought that there was nothing to justify them interfering with the decision of the jury.

            I am not against anybody arguing that a jury got a verdict wrong IF they are basing their argument from access to the full evidence. But here we have a whole tribe of internet warriors who – based only on a partial and selective account of edited evidence put forward by the defendant – are arguing that the jury got it wrong; even to the point of (some of them, at least) putting forward a fantasy defence that isn’t being argued even by Ched Evans and his legal team.

            If people want to argue that the jury got it wrong; then fine – but not if their argument is based on fantasy or on a dislike of a law.

            If you don’t like the law, argue against it in a politics blog.

          • http://www.minimanager.co/ Ix Techau

            By calling the sceptics ‘rape apologists’ you are confessing your true anti-Evans agenda, there is no way out of that one I’m afraid. I’m not a rape apologist (especially not as a woman with more experience of this on the receiving end than you will ever have as a man), I’m just not buying this case wholeheartedly and then leaning on a jury decision to ignore uncomfortable doubts.

          • http://footylaw.co.uk Footy Law Blog

            I don’t call the sceptics rape apologists. People are entitled to be sceptical.

            However, there are rape apologists, some have commented on this thread. For example, the comment that “Men
            seem to get over having sex when they were legally too drunk to consent more

            easily than women do” is a classic example of rape denial or rape apologetics and make no bones about criticising that.

            You have “uncomfortable doubts” – fine. But do you ever think that these uncomfortable doubts exist because you are only hearing a part of one side of a partial and carefully selected and edited argument rather than the full case evidence?

          • http://www.minimanager.co/ Ix Techau

            Not really. I think what you’re hinting at is that I’ve only read the Ched Evans website, but that’s not true. I’ve read quite a lot about this case (for many reasons), let’s not pretend that doubts disappear from this case the more you read.

            As a woman I can tell you that the behaviour of the girl is highly suspicious. Hard drugs (cocaine), heavy drinking, picking fights, pissing on the street…all while being out *alone* without any backup. That is extremely weird behaviour, so the leap from that to wanting a threesome is hardly unfathomable. I don’t know why we assume this would be such a stretch for this girl.

          • http://footylaw.co.uk Footy Law Blog

            Why do you always try to interpret what I say instead of accepting what I say for what the words actually mean?

            I am not hinting, suggesting, implying or guessing that you have only read the Ched Evans website. And nowhere do I say that.

            What I have said is that you have not seen and heard all the evidence put to the jury. Nobody has, unless they were in court for the duration of the trial. You can, I can, anybody can read as much about this trial as we can find – but none of that will come anywhere near to matching the totality of the evidence put to the jury.

            I agree with you entirely that the behaviour of the victim was shameful. But in this day and age it is not “extremely weird” – the same type of thing happens in most town centres most Friday and Saturday nights.

            But, I’m sorry, you can’t go from there to say that “the leap from that to wanting a threesome is hardly unfathomable” because NOBODY – not even Ched Evans and Clayton McDonald – NOBODY has suggested that there was a threesome and there is no evidence to support such a claim.

            This is another example of people putting forward what I call a “fantasy defence” for Ched Evans.

            He has a defence. It was put to the jury and court of appeal and rejected. His lawyers have now developed his defence into a submission to the CCRC. He does not need members of the public developing fantasy defences for him.

          • http://www.minimanager.co/ Ix Techau

            Again you’re confused. I’m not defending Ched Evans, nor do I want to. Neither practically nor in fantasy. He seems like douchebag of the highest order.

            What I am doing is casting doubt on the jury’s verdict. We can’t hide behind “the jury has seen more”, because the jury isn’t the only entity who had access to all the information. Besides, according to the defense there is no information of importance that hasn’t been revealed to the public. They would know.

            Technical threesome or not, the point is that it’s not unfathomable that the girl would consent to what happened, and according to her own claim she wasn’t more drunk than usual. And then a handy Walter White-style fugue state on that. There’s where the doubt is.

      • DrQ

        Hi there. I find this comment interesting. Are we saying here that the law states point 3 is a must? So for example if in this case the jury had been presented with evidence from a neutral witness who the victim met just prior to going into the room, which Evans was completely unaware of, which suggested she was capable of providing consent, that the jury should disregard this evidence as irrelevant? Would we not be finding someone guilty of a crime that never actually occurred in such circumstances?

  • John Smith

    I’m sorry if this has been asked before (its a very long thread!) but were the jury privy to evidence which is not in the public domain?

    • http://footylaw.co.uk Footy Law Blog

      Yes, but I can’t tell you what as I do not know.

      (Actually, it is in the public domain in the sense that it was presented in open court; but it isn’t in the public domain in terms of being available to read online).

      It was a seven day trial and the material on the internet would take only a small fraction of those seven days.

      • John Smith

        I ask because on the evidence available in the public domain as a juror I would have acquitted him.My thought process would have gone something like this: the evidence from the kebab shop clearly shows that the woman was drunk.In fact at that point she was at ‘maximum intoxication’ as there was no evidence that she consumed any more alcohol.At this maximum intoxication she opted to go back to the hotel with McDonald who she did not know.From that point her blood alcohol level would have been decreasing as it was metabolised.We know that she metabolised alcohol efficiently because she registered nil blood alcohol on the test the next day.The CCTV footage at the hotel shows the woman to have somewhat inebriated, but relatively able motor control (picking up pizza, walking in wedges etc.).This is important because it is the last physical evidence of the woman’s state before sex (it trumps the kebab footage because it is closer in time to intercourse).Now knowing the Bree precedent that ‘drunken consent is still consent’ to be ‘beyond reasonable doubt’ that she was’nt capable of consent I would have needed to see the woman basically being carried into the hotel unable to stand on her feet without support.The only independent witness we have to the events in the room was the receptionist who heard both male and female sexual noises.This counts in the accused’s favour because it establishes that the woman was at the least conscious and possibly enjoying intercourse. Ched Evans’ ‘suspicious’ behaviour afterwards may be seen as the guilt of a man who had just cheated on his girlfriend who got scared.On the basis of the above I could not say beyond reasonable doubt that rape had taken place and so would have acquitted both men.It seems to me that many people are confusing their own moral aversion to casual, drunken sex with rape.The former may be unwise but it is legal in this country with perhaps only moral opproprium attached while the latter carries massive consequences with a lifetime of being listed as a sex offender not the least.Just my thoughts.

        • http://footylaw.co.uk Footy Law Blog

          This is the problem: many people are coming to a conclusion based on the evidence in the public domain – which is, on the whole, edited highlights selected by Ched Evans. We do not have the benefit of the full seven days of evidence that was presented to the jury.

          It would be dangerous for juries to consider questions about the metabolism of alcohol unless that had been presented in evidence.

          I have been drunk – and managed to get home 40 miles away despite the fact that I had missed the last train on my line and had to use a different line, from a different station to get as close as I could and then get a cab. I was able to do all that despite having drunk a considerable amount of alcohol. However, once my body hit the bed I was out of it.

          You say “It seems to me that many people are confusing their own moral aversion to casual, drunken sex with rape.”

          From my perspective, it seems to me that many are confusing rape with their own preference for casual drunken sex.

          The amount of times I’ve heard (mostly) men say that “Ched Evans isn’t guilty because we’ve all done what he did” says to me that there are a lot of men out there who do not realise that – in law – their behaviour is rape.

          • John Smith

            ‘However, once my body hit the bed I was out of it’.Yes but the noises as described by the independent witness in this instance suggest that was’nt the case. The fact remains that no matter what the evidence is we hav’nt seen there were no independent witnesses in the room at the time of intercourse to say if she was in a fit state or not, in that way the jury are in no better position than us.The onus on the prosecution is to prove she was not.They can only go on evidence and not conjecture.The best evidence i.e. that closest to intercourse clearly shows she was able to pick a pizza up from the floor unaided.I have seen may drunk people who could’nt have done this.If you are going to send a man down for 5 years you need to be very confident that she could’nt possibly consent.I don’t have that confidence from what I have seen.

          • http://footylaw.co.uk Footy Law Blog

            “from what I have seen”

          • John Smith

            Yes, but its difficult to envisage any evidence which could remove that doubt.For example were there hidden cameras in the room which we don’t know about or a signed confession found on Ched Evans’ person?! The fact remains that from leaving the taxi to intercourse there was no evidence which the jury could have had which we don’t.This is the critical time because this is when the offence is supposed to have happened.If you can show otherwise I will be happy to stand corrected; because at the moment the verdict arrived at by the jury seems to be a stinker.

          • http://footylaw.co.uk Footy Law Blog

            Do me a favour. If you’re ever called for jury service for any case in which I am involved; please do everything you can to get yourself excused as you seem determined to pre-judge a case by what you find on the internet rather than on what is presented in court.

          • John Smith

            I’ll take that as that you know of no other evidence! The thing is you disparage the CCTV evidence presented on the Ched Evans site, but are you suggesting it was fabricated? It may have been edited perhaps but that’s not particularly important because it is what it shows which is more important than what it does’nt. It clearly shows that the woman was not carried/assisted into the hotel semi-conscious.To be sure that she was not able to consent that is what I would expect to see.Remember, because of Bree, being tipsy is not enough to convict.Couple that with the testimony of the receptionist at the door which establishes that the woman was at least conscious during intercourse.I would say we have reasonable doubts that a rape took place that night.

          • http://footylaw.co.uk Footy Law Blog

            I have not disparaged the video. I have criticised the placing of the video on the website as I believe that to be against the law.

            By edited highlights, I mean that the trial took seven days. There is not seven days worth of evidence on the website.

            If the jury – the people who heard all the evidence and had to carefully consider it – believed that there was reasonable doubt they would not have convicted.

            I am not interested in whether people who have only heard part of the evidence think that there is reasonable doubt. Of course you do – you haven’t seen all the evidence.

            If we don’t trust the courts to make decisions, what is the alternative? Mob justice?

          • John Smith

            A man has had his life ruined by this case. Every time he reads or hears his name its ‘convicted rapist Ched Evans’ or ‘Ched Evans who was convicted of rape’.He served 2.5 years in prison with 2.5 on license, he has to sign the sex offender’s register and he is prevented from plying his chosen trade.So I think the evidence that has convicted him needs to ‘beyond reasonable doubt’.I make no apology for that.I also admit that this has shaken my faith in the jury system and it seems a lot of other people’s as well.It seems to me that it would be very convenient for people if he just shut up and stopped protesting his innocence.In fact it probably would have been easier for him to get his career back on track.Have you even considered the possibility that ‘hey this guy may actually be innocent’? I believe that innocent men should’nt have the millstone of ‘convicted rapist’ around their neck.

          • John Smith

            Oh, and we’ve seen plenty of evidence of ‘mob justice’ preventing him from earning a living in his chosen profession hav’nt we?!

          • http://footylaw.co.uk Footy Law Blog

            I have little sympathy for any rapist.

            Ched Evans has not had his life ruined by this case. He has had his life ruined because he raped a woman.

            The evidence used to convict him was proved beyond reasonable doubt. If it wasn’t, the jury – the people whose job it is to decide whether it was proved beyond reasonable doubt – would not have convicted him.

            One of the grounds of appeal used by Ched Evans was the “nagging doubt” about the safety of the conviction. It is a tactic that rarely succeeds, but in this case, on the subject of the “nagging doubt”, the Lord Chief Justice said: “We can see no possible basis which would justify us to interfere with the verdict of the jury which heard all the evidence and reflected on it following a careful summing up by the judge.”

            In other words, the Court of Appeal and the Lord Chief Justice, considering whether there was a “lurking doubt” (they didn’t like that phraseology) concluded that there was none.

          • john cox

            Oh, the CA loved the conviction, no question.

            Here’s the view of one very distinguished solicitor on the Court of Appeal, Criminal Division.

            https://www.opendemocracy.net/ourkingdom/glyn-maddocks/what-does-it-take-to-overturn-miscarriage-of-justice-in-uk

            His view would be that of most lawyers practising in the field, in my experience.

          • John Smith

            Interesting link, thanks for posting.

          • John Smith

            Your mantra seems to be a tautological ‘he must be a rapist because the jury found him guilty of rape’.But do you not agree that juries, being composed of fallible humans, are not infallible? I don’t know how you can be so sure of the position you adopt in this blog given the nature of the evidence and the key fact that there were no witnesses to intercourse (apart from the defendants).Does it not worry you at all that the accuser could perform relatively complex actions just before intercourse or that she voluntarily intoxicated herself? Ched Evans was also somewhat intoxicated himself but he is quite rightly not allowed to abrogate responsibility for his actions under the influence.

            I am sorry but I don’t share your certainty and it seems a lot of other people don’t either.

          • http://footylaw.co.uk Footy Law Blog

            A five minute drunken fumble is not rape. Evans has not been convicted of a five minute drunken fumble. He has been convicted of rape.

            You may find it “abhorrent that this man’s actions share the same ‘convicted rapist’ tag (technically true though it is) as a guy who lurks in bushes waiting to attack pensioners walking their dogs” but that is part of the problem with securing rape convictions: most rapes are not committed by people who hide behind bushes wearing masks and carrying a knife; but by people who are known to their victim.

            For as long as people don’t get that they are both rape; we will retain the situation where most men accused of rape are acquitted – because juries fail to see that the nice looking well dressed man in the dock with a good job and decent family can’t possibly be associated with the archetypal image of a rapist.

          • john cox

            The latest CPS statistics that I’m aware of are that 37% of men charged with rape are acquitted. Do you know some different ones or are you just, y’know, ranting without any consideration for the facts?

          • John Smith

            The fall out if this case is taken as a precedent is disastrous.Do we really want to police people’s sex lives so that men need to start taking an alcohol testing kit and a consent form (and perhaps a couple of briefs for good measure) before they get it on? What about the potential serious criminalisation of thousands of young men? Also, why in this day and age is it assumed that only men have to take responsibility for their sexual actions when drunk? In a sexual encounter between two equally drunk partners, even if the encounter is inititiated by the woman it is the man that is tried as a rapist because the woman is deemed ‘incapable of consent’! How sexist is that?! How about alternatively we tell our young people- If you don’t want consensual drunk sex choose not to get drunk!

          • http://footylaw.co.uk Footy Law Blog

            There is no precedent in this case (not least because Crown Courts do not set precedents): this case is not dissimilar to many rape cases dealt with by the courts each week.

            Everybody has to take responsibility for their actions: in rape, the actions lie in the hands of the rapist; not the victim. If you don’t like that, try to change the law. You won’t get very far.

          • John Smith

            You keep using the loaded words ‘rapist’ and ‘victim’ but when there has been consent (or at least no evidence of non-consent) there is no rapist and no victim; why cannot you see this?

          • http://footylaw.co.uk Footy Law Blog

            If there is no evidence there would not have been a prosecution; yet along a trial and conviction.

            Why cannot you see this?

            I use the loaded words “rapist” and “victim” because Ched Evans is a rapist and the woman is a victim. That is what the law has decided.

            Why cannot you see this?

          • John Smith

            Were the Guildford 4 bombers because the jury said they were?

          • Jane

            ” It may have been edited perhaps but that’s not particularly important because it is what it shows which is more important than what it does’nt.”
            How can you really believe that?
            The version I saw had some footage missing – make of that what you will.

          • john cox

            Come on, that’s disingenuous. As you well know, when the CA give judgments they summarise what they consider the evidence relevant to the issues they are discussing, for the benefit of all – legal scholars, those seeking to argue future cases, the public and, hell, people who would like not to rape women and thus want to understand what not having the capacity to consent means. It’s extremely improbable that any evidence was given to suggest capacity was lacking beyond what the CA summarise. Every trial is full of hours of evidence which turn out to have little or no value. I’m sure Bree and Dougal were, and no-one writes legal articles about them saying ‘of course there may have been all sorts of evidence about capacity which the Court of Appeal didn’t bother to record.’

          • http://footylaw.co.uk Footy Law Blog

            The two issues are entirely separate. The Court of Appeal summary is giving reasons why they have rejected the grounds of appeal.

            My comment relates to somebody who is prepared to decide guilt or innocence solely on what they find on the internet despite knowing that the Internet does not give all the evidence that was presented to the jury. I don’t want such a person on a jury deciding anything that is important to me.

          • Jane

            I saw the same tape as you and it was very jerky. I couldn’t say if she picked up the pizza easily or not.

          • john cox

            >the evidence in the public domain – which is, on the whole, edited highlights selected by Ched Evans

            Well, yes, that and the far more partial highlights selected by the Court of Appeal. However, I find it reasonable to suppose that nothing critical and supportive of the prosecution’s case was omitted both by the press coverage and the CA. It’s certainly possible to discuss the case on that basis.

            Incidentally, am I right in thinking that the CA would have had a transcript of the evidence in their bundles? And thus that it must be available? If so, given the interest in this case, is there any reason why the Evans team couldn’t put it in the public domain?

        • Jane

          I would agree that the levels of intoxication of the victim were probably wearing off as time passed.

          However – and the following is speculation on my part ;-
          I understand that victim had not consumed any food between going to her shift at work until she ate the pizza. We all know that after a few drinks people often get hungry, which is why kebab shops do such a roaring trade after the pubs/clubs have emptied out.
          She spent an hour in the takeaway eating food (her’s and other peoples’) before she met up with McDonald.
          I would speculate that by this time she was starting to sober up but was getting sleepy/tired due to the overload of carbohydrates from the pizza in her system.

          • john cox

            >I would agree that the levels of intoxication of the victim were probably wearing off as time passed.

            I thought blood alcohol levels actually peaked an hour or so after consumption finished?

          • Jane

            Possibly but not always. There are many factors involved. If what you say is true then the victim would have been reaching maximum intoxication after the hour she spent in the takeaway shop.

            For normal social-type drinking, the highest blood alchohol content is usually achieved within 30 minutes after completion of consumption, though it could take as long as 60 minutes. When large amounts of alcohol are consumed over a short time interval, or when a large quantity of food is eaten with the alcohol, the absorption phase may not be complete for up to two hours after last consumption.

            We know that she did not eat any food with the alcohol, she ate later, after she had finished drinking.
            However, she was, as far as I am aware “drinking on an empty stomach” to start with, which would speed up the absorption.

            Did she imbibe what could be described as “large amounts of alcohol” over a short space of time? How long is a piece of string?

            I calculated that the two wines drunk at work = 6.4 units. There was an hour’s gap before she started drinking again, then in an hour and a half she consumed another 15.7 units.
            The total = the equivalent of 2 bottles of red wine at 12.5%.

  • anneteak

    If the hotel entry tape was disallowed, can anyone tell me why?

    • Frank

      It formed part of the prosecution case. The jury saw the tape

      • Jane

        Do we know if they saw the same tape that is shown on the Evans website?

        • john cox

          I don’t think we do, no.

        • Frank

          They saw more.

          • Jane

            Then I wonder why the website shows the abridged version?

          • john cox

            The Evans site says McDonald chased after the taxi to try and stop it and retrieve the handbag. It’s possible they cut out a bit where there’s just no-one in shot, I suppose. Or there might be more sinister reasons, of course.

            I don’t know why Frank’s so confident the jury saw more. I don’t think we know that, unless he means the CCTV from Queen Street and the kebab shop.

          • Jane

            If you look at the part of the tape just before the missing segment, the doors to the hotel are seen closing. Those doors are operated automatically by anyone breaking the laser beam as they pass in front or behind them. These are fitted in most hotels, I believe, to comply with the Disability Act in order to make them suitable for wheelchair users. IMO this begs the question of whether or not another person was around at the time?

          • Frank

            Because it is a propaganda site that despite claiming to be fair and balanced has the sole purpose of “proving” his innocence

  • André Costa Silva

    “All a person has to do to be a rapist is to penetrate a person without their consent.”
    So, in British law, women can’t rape intoxicated men without use of a penis-shaped object?

    • http://footylaw.co.uk Footy Law Blog

      It doesn’t matter if it is a penis shaped object. If it isn’t a penis, it isn’t rape.

      The offence you describe would be sexual assault by penetration (see section 1 of the Sexual Offences Act 2003)

      • André Costa Silva

        Wow. I guess English (British?) law hasn’t caught up with the times.

        • http://footylaw.co.uk Footy Law Blog

          It is English law – Scotland and Northern Ireland have their own legal system. Wales is subject to English law as it has never had its own legal jurisdiction. This may change in the future if the Welsh Assembly is ever given law-making powers in a further act of devolution.

          I’m not sure what you mean when you say that the law hasn’t caught up with the times. The scenario you describe would still be an offence; but not rape.

          • André Costa Silva

            Well, I thought it was pretty much self explanatory, but several countries now have a much broader definition of what rape constitutes under their law. Do a little research on the subject as it’s a good read.

          • http://footylaw.co.uk Footy Law Blog

            English law was changed relatively recently (2003).

            One of the things it did was to “upgrade” forced oral sex to rape and to “downgrade” forced buggery to rape.

            As I say, other forms of penetration are still a serious sexual assault; but not rape.

          • john cox

            The test is the same (bar the object used) and so is the maximum sentence. It doesn’t matter what you call it. It’s not such a bad idea to have a different offence for penetration with something that isn’t going to make you pregnant or give you AIDS. I dare say the sentencing guidelines might be different.

      • john cox

        Section 2, but yes.

  • john cox

    >”The law is clear: being vulnerable through drink or drugs does not imply consent.”

    My word. That’s quite the straw woman. I’m not sure *anyone* thinks that being the worse for wear for drink implies consent.

    I wonder about Nita Dowell.

  • john cox

    I have a question I’d like to know about the law.

    It’s obvious, unless there was some important evidence the CA didn’t bother to record, that this complainant was far, far less incapable than the complainants in R v Dougal and R v Bree, both of whom were held capable of consenting.

    I know that the law is that it’s up to the jury to a large extent what not having capacity through reason of intoxication means, but still, my question is this: has there ever been another case where a complainant has been held incapable of consent even though, at the time of the events relied upon to show that, she has clearly been capable of walking, talking, interacting with other people, buying a pizza, getting in and out of taxis, and so forth, and has at no point lasped into unconsciousness, thrown up, or any of the usual indicia of extreme drunkenness?

  • john cox

    The post below is one main reason I think this verdict was wrong. It just goes way beyond anything we’ve seen before. It opens the possibility that a man can meet a woman who is speaking coherently and apparently functioning, albeit tipsy, ask her if she wants to have sex and receive the answer yes (or indeed respond to her own suggestion), proceed to have sex in which the woman participates, and then get imprisoned for rape. That simply can’t be the law.

    It’s obviously true that Evans behaved deplorably in various ways, some clearly legal, some possibly not. But that doesn’t affect the question of capacity one iota. It’s very difficult to think that if a hypothetical woman in the same state as this complainant had met a man in a nightclub and had sex on the briefest acquaintance, that a jury would have thought she was too intoxicated to give consent. The statutory test is that the complainant has to lack the capacity to make a choice. That’s a stern test. It’s extremely difficult to see any reason to think that the complainant here didn’t make a choice to go back to the hotel, for instance, and if she has capacity to make that choice, how can she possibly not have the capacity to consent to sex?

  • john cox

    There’s one other important fact about the trial – well, allegation on the Evans website, if you prefer -, and that is that the defence was denied the right to call evidence which it had available as to the complainant’s previous sexual conduct (which may have been convincing or it may not; judging by some of the evidence they seem to think was important, probably not. But still.)

    Now, as I understand it, that happens because the prosecution has not chosen to lead evidence of character. In other words, the complainant has not said, ‘I am not the sort of woman who has sex in hotel rooms with strangers’, either because that is not in fact true, or because she doesn’t want to be cross-examined as to previous conduct, or as a tactical decision by the prosecution, or for whatever reason. Normally, where a complainant cannot remember anything, this kind of evidence is led, as it was in Bree and Dougal.

    Now that’s fine in a sense, right or wrong, it’s the law and the prosecution’s right to shut out evidence that the defence wishes to call in this way. (it’s the rules of the game, in fact).

    What it does mean, however, is that there was just no evidence at all to suggest that the words ‘yeah’, ‘lick me out’, ‘f*ck me harder’, etc., were not spoken. The prosecution simply couldn’t, and as far as one can see didn’t, submit that ostensible consent of that kind wasn’t given. So the issue really was just capability, as the CA judgment makes clear.

    • http://footylaw.co.uk Footy Law Blog

      This is nothing to do with the prosecution choosing not to lead evidence of character; but because questions about a victim’s past sexual history is outlawed by section 41 of the Youth Justice and Criminal Evidence Act 1999 (except in very rare circumstances).

      A person may have very loose morals and be willing to have sex with almost anyone (not implying anything about the victim in this case – it’s the general legal principle) – but she still has the right to say no and so it is not relevant in deciding whether or not she consented in a particular case.

      • john cox

        The ‘very rare circumstance’ which you mention include rebutting prosecution evidence FFS!

        http://www.legislation.gov.uk/ukpga/1999/23/section/41

        What I said is true – if the prosecution put in evidence that the complainant isn’t that type of girl, is sure she wouldn’t have consented, etc., then the defence can call evidence of past sexual history if necessary to rebut that.

        >A person may have very loose morals and be willing to have sex with
        almost anyone (not implying anything about the victim in this case –
        it’s the general legal principle) – but she still has the right to say
        no and so it is not relevant in deciding whether or not she consented in
        a particular case.

        Well, of course this is a classic shibboleth of anti-rape campaigners. To see how wrong it is, consider a less emotive case: a man is accused of assaulting another in a disused car lot. The defence is that the victim consented to assault. Say the evidence is that the two of them, with others, have gone to the same car lot every weekend for the last five years with a view to having bare-knuckle fights. Are we seriously saying that such evidence wouldn’t be relevant? Really?!

  • john cox

    The other reason why I think the jury, and the CA, were wrong is this.

    As I said, the case was put solely on the basis of lack of capacity. The jury obviously considered that the complainant lacked capacity. However, they found that McDonald had a reasonable belief in consent, and Evans didn’t. ‘Consent’ there includes capacity. The jury thought that McDonald reasonably believed that the complainant had capacity.

    The CA deal with this in paragraph 20. They say:-

    “It was open to the jury to consider, as it seems to us, that even if the complainant did not, in fact, consent to sexual intercourse with either of the two men, that in the light of his part in what happened – – the meeting in the street and so on –McDonald may reasonably have believed that the complainant had consented to sexual activity with him, and at the same time concluded that the applicant knew perfectly well that she had not consented to sexual activity with him (the applicant).”

    Where the CA go wrong there is that they ignore the fact that McDonald must also have believed that the complainant had the capacity to consent. Now McDonald saw virtually everything the prosecution relied upon in order to establish lack of capacity. He saw the famous fall. He was in the kebab shop with her when witnesses said from her behaviour she was ‘very drunk’. He was present when the taxi driver saw her. He was present when the night porter saw her and said she was ‘extremely drunk’. He was alone with her for fifteen minutes, conversing with her. He saw her with his own eyes consenting to have sex with him. He had sex with her, for goodness sake. That’s not a bad way of finding out whether someone has the capacity to make choices by itself.

    In short, he was in a far, far better position than any juror or judge to decide whether the complainant had the capacity to consent to sex. And he *reasonably* believed that she did have that capacity. Otherwise he’d have been convicted.

    The question which arises from that isn’t, as the CA seem to have considered, what that tells us about Evans’ belief. It’s this: if they thought McDonald reasonably believed that the complainant had capacity, being in the best position of anyone to judge, how on earth could the jury have possibly believed that they, being less well placed to judge, were sure beyond reasonable doubt that McDonald was wrong, and the complainant did not have capacity? There’s just no answer to this.

    And once that’s accepted, there’s no possible basis for convicting Evans; if the complainant has capacity to consent, no-one can possibly say beyond reasonable doubt that she didn’t. She can’t say – how can anybody else?

  • john cox

    >Sex without consent is rape. . All a person has to do to be a rapist is to penetrate a
    person without their consent.

    This simply isn’t true, of course, as you obviously know from the comments. To be a rapist a person has to penetrate a person without their consent *and without a genuine and reasonable belief that the person is consenting*. You might want to correct this part of the piece.

  • john cox

    >“In effect, it is now proposed that a new expert should be called to disprove the evidence given by the former defence expert

    It’s true the CA said that, but what they said was not true – I don’t know how many CA judgments you read, but an experienced eye can tell pretty clearly from this one that there was some emotional involvement on the part of the CA which leads to some fairly careless statements.

    The expert at the trial said (inter alia) that the amount drunk wouldn’t be expected to cause memory loss. The expert the defence now want to call said, in the very passage that they quote, that ‘according to the evidence (meaning the witness evidence) there was long-term memory loss’, and went on to say that if there was long-term memory loss, that didn’t mean that there was necessarily, or even probably, an inability to consent. That doesn’t “disprove” the evidence of the first expert at all, either ‘in effect’ or otherwise; it assumes something has happened which the first expert said was improbable. Not the same thing at all.

    That’s not to say that the new evidence should have been allowed, but it illustrates something all litigators know; once the court hates you, it will say anything at all, no matter how illogical, as a stick to beat you with (see the judge’s remarks while sentencing). This is especially true for some reason of the CA.

  • john cox

    >We simply do not know – but CCTV of a drunk person entering a hotel is
    not evidence of what happened to that drunk person once they landed on a
    bed.

    This is true, of course, but we can’t just be making stuff up, either. The video was the best evidence available to the jury of the complainant’s condition at the critical time. If it (and eye-witness evidence) doesn’t show beyond doubt that the complainant isn’t able to make choices at that time, then the prosecution fail.

    I take your points about publication of the video, but you would agree, surely, that it would be very undesirable if a person who has been convicted and believes that he should not have been on the evidence, were not able to put that evidence before the public with a view to it making up its own mind, especially when one considers that he is being prevented from earning a living in the way he chooses by people part of whose motivation is that he won’t apologise, accept guilt, show remorse, etc.

    • Jane

      Yes, let’s all have a look at the video as shown on the Ched Evans website.
      Anyone with sharp eyes will see that there are some segments missing – check out the counter at the bottom. At one stage in the first recording there is a time lapse of about a minute – or at least there was the last time I viewed it.

      • john cox

        Yes, this is true. It would be desirable if a proper cut of the video were shown publicly with the permission of the court (insofar as it’s needed; it’s not as obvious to me as it seems to be to some that it is). We’ve long since passed the point where it could really identify the complainant, and it could anyway easily enough be pixellated to the extent that it didn’t.

        However, the famous video doesn’t really alter the fact that McDonald was present all this time and, according to the CA, formed a reasonable view that the complainant was not too drunk at this time. The question therefore remains; how on earth could the jury maintain in its collective mind two thoughts – one that someone much better informed than they reasonably believed that the complainant had capacity, the other that they themselves were sure beyond reasonable doubt (and after hearing expert evidence, not available to McDonald, which tended to reinforce his belief), that she did not and that McDonald’s reasonable belief was wrong? I haven’t heard an answer to this.

        • http://footylaw.co.uk Footy Law Blog

          “It would be desirable if a proper cut of the video were shown publicly with the permission of the court”

          Desirable to who?

          Courts decide questions of guilt and innocence; not the media; not the mob; and not outrageous commentators on the Internet.

          I think you’ve dominated this thread long enough. You’re not adding anything worthy. Please stop. Get your own blog if you must continue to write your ridiculous statements.

          I think you may have written more on this blog than I have.

          • john cox

            >Desirable to who?

            As I said, in my opinion it is desirable that people who believe they were wrongly convicted should be able to put before the public the evidence on which they were convicted and see whether the public agrees. Justice is an open process; it must be seen to be done.

            In answer to your question, desirable to everyone.

  • john cox

    >In this case, the woman went to the hotel with Clayton McDonald and video footage showed that she appeared to do so willingly

    You give yourself away here. If she went “willingly”, she was exercising a choice, and if she had the capacity to exercise a choice, then she passed the statutory test for being able to give consent.

  • john cox

    >Evans convicts himself with his own testimony: he claims that the
    victim consented. Did she consent to him lying to get a key to a hotel
    room and letting himself in so he could get a look at her at a time when
    he thought that she would be naked? No. By his evidence he spoke to her
    for the first time in the hotel room. Where was the consent to be ogled
    in the nude? Did she consent to his brother and friend filming the encounter through the hotel window?

    None of this has anything to do with whether or not she consented to sex. It may make Evans a bad person – though to be quite honest I’d want to have a lot more experience about the sexual mores generally prevalent among young people who get drunk and have sex with people they’ve only just met before I got really medieval about it – but that’s not what he’s on trial for. It might go to the reasonableness of Evans’ belief in consent if one got that far, but I don’t believe one does.

  • john cox

    >Nor are they calling for “extra-judicial penalties”.

    This is dishonest. Of course they are, rightly or wrongly.

    • http://footylaw.co.uk Footy Law Blog

      Is it an extra judicial penalty or is it simply a long term consequence of an illegal act?

      Being on the sex offenders register indefinitely; having a conviction that is never spent – why is that if not to recognise that, in law, certain crimes have long term consequences?

      Is a self-employed lorry driver subject to an “extra judicial penalty” if he can’t return to his career because he can’t afford the higher rate of motor insurance following a conviction for drink driving? Or is this is merely a long term consequence of his illegal act?

      If a car hire company won’t hire a car to him for the same reason, is this an extra judicial penalty or a long term consequence?

      If a solicitor is convicted and sentenced for dishonesty – is it an extra judicial penalty if the Law Society orders him to be struck off; or is this a long term consequence of the unlawful act?

      As I say, there is no legal reason why he can’t return to football. But he has, by his own actions, become a toxic brand and it is perfectly in order for campaigners to highlight this to would-be employing clubs and sponsors. The toxicity of his brand is not an extra judicial penalty – it is the long term consequence of his actions.

      • john cox

        >Being on the sex offenders register indefinitely; having a conviction
        that is never spent – why is that if not to recognise that, in law,
        certain crimes have long term consequences?

        It’s to recognise that sex offenders frequently re-offend and thus warn people of their past and ensure the state can keep an eye on them. Not to prevent them from obtaining any employment and thus increase the chances of their re-offending.

        >Or is this is merely a long term consequence of his illegal act?

        It’s a consequence, of course, because insurance companies judge him more likely to crash his lorry. The difference is that they get to make that calculation without Internet petitions, howls of outrage in the newspapers, the likes of Jessica Ennis making fools of themselves, and so on.

        >If a solicitor is convicted and sentenced for dishonesty – is it an
        extra judicial penalty if the Law Society orders him to be struck of

        No; it’s an intra-judicial penalty, because it happens pursuant to solicitors’ conduct rules which the courts have held are a statutory instrument. But anyway solicitors are different, of course – the public give them money to hold.

  • john cox

    >Employers – including football clubs – have a duty to all of their
    employees. How safe would women feel working alongside a convicted
    unrepentant rapist? More importantly than how they feel, how safe would
    they actually be?

    This would be an argument for not allowing convicted rapists to work anywhere. If that’s going to be the position, it should be statutory.

    > I haven’t seen any of the campaigners arguing against his return to football from saying that he should be denied every job

    Well, except you, of course, in the passage I quoted above.,

    • http://footylaw.co.uk Footy Law Blog

      Fair point – except that statutorily, employers are allowed to take this into account without fear of action in an Employment Tribunal or elsewhere for unfair treatment.

      • john cox

        All employers. Which makes it an argument against rapists finding employment anywhere. (in fact, one might flippantly suggest that it applies with less force to employment by a professional football club than almost anywhere else).

  • john cox

    >It is difficult to see how a person who refuses to acknowledge that he did wrong can be rehabilitated.

    You’d agree, I’m sure, that this didn’t trouble Parliament when it passed the Rehabilitation of Offenders Act 1974, nor the Home Office when it issued its latest guidelines (here:https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/299916/rehabilitation-of-offenders-guidance.pdf).

    Annex A is instructive. If we’re going to say that offenders, or certain types of offender, shouldn’t work in football, that is the Order we should be seeking to amend.

    In any case, I’m really not sure what form this acknowledgement that people bang on about ought to take. You say yourself that on Evans’ own version of events he’d done nothing wrong. I’m not sure that’s actually right necessarily, but let’s assume it is; what’s he supposed to say? “My sworn evidence was lies and I now accept that something entirely different happened?”. “The jury didn’t believe my sworn evidence, even though it was uncontradicted and supported by Mr McDonald, and consequently I accept that I must have been mistaken in my recollection.”? You’re effectively demanding that he either admit perjury or come out with some hypocritical nonsense. As I said before, when you have sex with someone, you know whether they’re consenting. If you get convicted of rape on the basis of what twelve people who weren’t there think about the incident, you’re not going to change your mind.

    It’s a serious question. What on earth is he supposed to say?

    • http://footylaw.co.uk Footy Law Blog

      Evans’ offence is not covered by the Rehabilitation of Offenders Act.

      • john cox

        No, I understand that. My point was that Parliament didn’t consider remorse any part of what should cause us to regard an individual as rehabilitated. The law, in fact, doesn’t take any notice of remorse, apologising, or anything of that kind, in deciding when convictions should be spent, and nor does public policy, as far as I know.

  • john cox

    In any case your entire argument about whether he should play football is wrong. It’s based on the fact that playing football is a privilege and he shouldn’t be allowed to do it because he’s a bad man. That’s the very definition of extra-judicial punishment. If people happen to be privileged and commit crimes, we don’t take those privileges away as well as imposing the usual judicial punishment. If rich men go to prison, we don’t take their fortunes away. Seeking to do so would be monstrous; this is no different. The only sensible argument is the role-model one, and the answer is at least threefold: first, if we believe in criminals returning to work being a good thing then it’s also a good thing for them to return to work at a high-profile job; second, it has never previously been thought an issue for people convicted of more serious offences to return immediately to football (at least two still playing); third, if we think allowing ex-criminals to play football sends out a message that crime is OK (an absurd view in my opinion, but no matter), then the thing to do is add football to the list in the Home Office guidelines, not form Twitter lynch mobs in individual cases.

    • http://footylaw.co.uk Footy Law Blog

      I don’t think that I have argued that he shouldn’t play football – in fact I said that there is no legal reason why he shouldn’t.

      As it happens, I don’t believe he should – but that is a moral and philosophical judgment rather than a legal one. However, he has no legal right to return to football and those who object to such a move are entitled to campaign against it, however much those who disagree with this think they shouldn’t (surely Je suis Charlie works both ways?).

      For those who argue that footballers aren’t role models or icons: did not Sheffield United sell replica shirts with Evans’ name on it before he went to prison? Didn’t Manchester United have certificates for their young Academy players with Evans’ photo on it? Didn’t the clubs’ mascots have their photos taken with Evans and seek his autograph?

      Commercial companies will sponsor football clubs to be associated with that brand. They want the good will to help generate sales and custom. Customers and would-be customers are entitled to tell them that if they associate themselves with a toxic-brand (which, in marketing terms, Ched Evans is) then they will do the opposite of what they are seeking to do and will stop or not start doing business with them.

      As I say – this is a moral, ethical and philosophical argument rather than a legal one: Evans is entitled to return to football and football clubs are entitled to sign him. However, there are implications involved in terms of negative publicity and being associated with a toxic brand – and it is perfectly legal for campaigners to point this out.

      Ched Evans and any football club that wants to hire him would need to think this through and conduct a balancing act.

      • peterdavis

        Actually the mindset of the anti-Evans campaigners is the complete opposite of ‘Je Suis Charlie’, it is censorious and intolerant. It feels offended by the sight of a convicted rapist who served his time, playing on a football field and moving on with his life.

        All the stuff about how it may ‘influence the young’ or ‘trigger memories in victims’ is classic censorious language – ‘we are offended by this so we refuse to allow it’. Substitute ‘offending God’ with ‘offending our sensibilities’, and you effectively have a modern-day form of blasphemy.

        Unfortunately in a free society you have to deal with stuff that is quite lawful, but upsets you. If we want to prevent things that offend people from happening, we must forfeit freedom of expression, simple as that.

        ‘Etes-vous Charlie?’

        • Clive Rymer

          You are an ill informed troll, with obviously no life experience. You offend me with your lack of empathy and compassion. You care more for the convicted than the victim and question the very fabric of English Society. You seem pretty keen on this bloke getting forgiven for rape, maybe a bit too interested?

      • john cox

        >I don’t think that I have argued that he shouldn’t play football

        Oh really? What was this sentence intended to convey, then?

        “It is common sense to most people – including the trial judge – that rapists should not return to football”

        > – in
        fact I said that there is no legal reason why he shouldn’t.

        Of course there isn’t; we all know that. The question is whether the likes of Jean Hatchet are behaving disgustingly, not ilegally.

        Of course football is in the public eye. All the more reason for it to demonstrate its adherence to the values of forgiveness and rehabilitation which society too easily forgets.

        >Customers and would-be customers are entitled to tell them that if they associate themselves with a toxic-brand

        Sure they are. And if they were actually warning the sponsors of trouble ahead, I’d have no problem with that. They aren’t though. They’re screaming their little heads off because they want to ruin Evans as a trophy in the sex wars. They want to destroy the happiness of someone they don’t know on the basis of one action three years ago which they didn’t see, which nobody has any clear idea about, and for which he’s already served a harsh penalty (and please spare me the stuff about how he’s still serving his time but on licence; we all know prisoners are generally released early and we all know what ‘served his time’ means in common parlance). Not one in a hundred of them has any connection with Oldham Football Club or could even name a sponsor of it.

        I find that disgusting. I’ve seldom if ever been prouder of my profession than when Carter Moore came out and said they’d continue to sponsor Oldham if they signed Evans.

  • john cox

    >What information are they seeking?

    Come on, there’s a perfectly innocent explanation. The complainant deleted a load of Facebook messages from shortly after the events, and Evans’ team believe, rightly or wrongly, that those might show that she remembered more than she said in court. It’s a well-known problem with rape complainant anonymity that defendants are denied the chance other defendants have to advertise for evidence and so on. There’s no reason whatever to think his legal team want this information for slut-shaming.

    Having said that, the actions of some of Evans’ family have been absolutely appalling and I can’t begin to understand why they were fined only £624 (or ordered to pay it to the victim, more accurately). They should have gone to prison and I can’t understand why they didn’t; I haven’t looked it up but I’d be disguated to find that a custodial sentence wasn’t available for this sort of thing, and it should have been used, if so.

    • Philip Giddings

      I agree with all of that. I believe the maximum sentence for contempt of court is 2 years’ imprisonment. On the basic facts that I know about these cases, if I were the judge that would have been their sentence (minus the discount for guilty pleas).

      • EAB

        So of the 3000 people that retweeted the name, all should be doing 2 years? The fines were so low due to the fact there were so many re-tweets.

    • E Clark

      Who said that the complainant deleted Facebook messages? (This is a genuine question as it appears to be hearsay, along with the text she sent saying “I’m going to sleep with two footballers”)

      • john cox

        The famous Ched Evans website says it. How they know they don’t say, but it’s far from impossible that the police would have investigated the complainant’s Facebook account and shared this information with the defence.

        I’ve not heard of a story of any text such as you mention. I wouldn’t place too much weight on that if I were you – as in zero. For one thing, on the defence’s own case the complainant couldn’t possibly have had any reason to believe she was going to any such thing.

        • E Clark

          Thank you. I did wonder – so, a load of hearsay then. Amazing what people can put on a website and have others take it as gospel.

          If someone was taking part in a trial the last thing they’re going to do is post a tweet boasting how much money they’re going to win, especially as one gets no compensation in rape claims – but it makes a good story. I found out this evening that the Great Wall of China cannot be seen from outer space. All these years I have believed it – and never questioned it – simply because someone told me/I read it was so, without even questioning the logic. Scary stuff.

          • john cox

            Well, of course everything that any of us know about the facts of this case is hearsay, strictly speaking. The website was put up by his solicitors in order to try and gain evidence to support him. I don’t suppose they’ve simply made it up; it seems rather counterproductive, to say nothing of dangerous and contrary to my general notion of life that most things happen through cock-up rather than conspiracy. They obviously have *some* reason to run the case the way they did and are, on the basis that the complainant is being dishonest. It seems such an obviously forensically disastrous course that I find it hard to believe there wasn’t some smoke of this kind – doesn’t mean there’s any fire, of course.

            >especially as one gets no compensation in rape claims

            Well, she could make a civil claim, of course. That’s where the money is. The fact she hasn’t done that rather tells its own story, though.

            > post a tweet boasting how much money they’re going to win

            The tweets were later; I think the idea of the Facebook posts is more to try and show that there was more recollection of events than the complainant later said.

            The content of the alleged tweets is on the Evans website, of course. Absent any context they’re surreally unconvincing, as I see it – she could be talking about winning the lottery.

          • E Clark

            Thank you. Well, yes: it suggests she hasn’t made a civil claim because it wasn’t about the money.

            I looked at the website briefly and it’s so shoddy and poorly put-together it’s a bit embarrassing. Still, the whole thing has sickened me so I’m not sure what I’m doing talking any more about it!

          • EAB

            Women can get up to £11,000 for making rape allegations, regardless of whether the event is proven. This is in the public domain and is paid out by CICA.

  • E Clark

    This is an informative and interesting blog. Thank you. MacDonald was given the benefit of the doubt, and rightfully so. If you don’t believe someone did something, they were is no way you can convict. The jury felt the evidence against Evans was stronger, so strong that they convicted. I don’t understand why people keep referring to mythological ‘Facebook statii’, texts or tweets – I could post that “Evans tweeted that he’d raped a girl” but it wouldn’t be true, would it?! If you are going on the claim of the next door neighbour’s hairdresser’s dog that so-and-so facebooked someone else but then that post was deleted, you really need to look at how you form your opinions.

    • Gearoidc

      Re the mythological tweets….

      http://www.corestore.org/lc.htm

      • E Clark

        That site is in contempt of court because it names her. That in itself tells me it is a complete load of rubbish and I won’t be reading it.

      • john cox

        Dude, that’s not cool. Get it off, now.

  • Rob Taylor

    Marlon King… he was convicted of a sexual offence, served jail time and was allowed to resume his career. That ends ANY doubt as to whether Evans should be allowed back or not. The precedent is there.

    • http://footylaw.co.uk Footy Law Blog

      Many people believe that Marlon King should not have been allowed to return to football.

      But, remind me, where is Marlon King now? Oh yes, that’s right – he’s back in prison.

      Not such a good precedent.

      • peterdavis

        The precedent was that has was allowed to return to his profession. Other offenders who have returned to football have not offended again. Joey Barton (assault/actual bodily harm – prison) was a pundit on Match of the Day on Sunday. Perhaps they think beating someone up in the street is OK?

  • Rose

    One rather minor point: you state “The law recognises the acknowledged proven fact that sex offenders are more likely to re-offend than other criminals”. That’s actually not true – sexual re-offending rates are actually comparatively lower than most other offences. Evidence: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/192631/proven-reoffending-jul-10-jun-11.pdf

    Other than that, very good summation of the facts.

  • john cox

    So, our host doesn’t seem to be interested in discussing this further.

    First, this stuff about how we don’t know the evidence. This is both true and not true. Take, for example, pre-booking the room. The prosecution say this was evidence of pre-meditation. The defence say that’s what always happened when McDonald came to Rhyl to hit the town. There would be no point in speculating at that level about who to believe; there’ll have been lots of cross-examination and perhaps even other witnesses about it, and we have no idea how it played out.

    However, the CA will have summarised the key evidence for a finding of lack of consent. The notion there might be other magic evidence like, say, an unmentioned eye-witness to a spot of unconsciousness on the part of the complainant, is childish.

    The CA can also be trusted to have made the best analysis possible of the jury’s finding. They will have had the benefit of submissions by the Crown’s barristers, who will have thought long and hard, having been at the trial, about the best way to put it.

    So it’s perfectly possible to look at the CA’s judgment and say what one thinks of it. And as I’ve said, two things stand out: the finding of lack of capacity throughout is an astonishing departure from previous cases, and the idea that a defendant can reasonably believe that the woman he’s just had sex with had capacity, and the jury can find beyond reasonable doubt that she didn’t, is also unique (not surprisingly).

    In an idle moment I searched for ‘consent Sexual Offences Act 2003′, or some such, on Westlaw today. That threw up eight cases. In none of them, bar one, was the complainant in anything like as capable a state as this complainant. They were all either unconscious or incapable of movement, or at the very least virtually so, and even then two of them were held to have capacity. In the one where the complainant was in a state similar to this complainant, the judge withdrew the case from the jury on the grounds there was no case to answer on capacity. Admittedly the CA said he shouldn’t have done, we don’t know the eventual outcome.

    I don’t think either that there’s ever been another conviction on the basis of lack of capacity where it is shown that the complainant went voluntarily to the defendant’s room. Indeed before this case I think most people would have said it was absurd and unthinkable. Obviously the complainant had the capacity to make choices, because she’s chosen to go to the defendant’s room. (Whether she actually consents once there is a different matter, of course).

    So, in that way, this case is quite a departure. It’s true that the law is pretty much that the jury decides in each case what this much discussed section means, so that a verdict isn’t necessarily wrong just because it’s way out of line with other cases.

    What’s impossible, as I’ve said, is the notion that having found there wasn’t capacity, the jury could also find that McDonald reasonably believed there was. It’s worth just stressing what that means; it means that a sober, reasonable man who knows the law might, in McDonald’s position, have considered that the defendant had capacity. That belief had to have lasted up to the final thrust of their intercourse (until after Evans arrived, in fact). Otherwise he was guilty.

    As I’ve said, McDonald had seen with his own eyes everything the Court of Appeal relied on to support a finding of lack of capacity. He’d also spent fifteen minutes alone with the woman. He’d watched her, with his own eyes, do whatever it was that gave him a genuine belief she’d consented to sex. He had, for God’s sake, had sex with her. A reasonable sober man who knows the law and is having sex with a woman knows whether she’s capable of consenting to it.

    The CA skate entirely over this in paragraph 20, demolishing a straw man about reasonable belief (actually not such a straw man; it raises some other interesting questions, which they ignore, about what a jury can actually do in the absence of any evidence. But anyway, they ignore the essential point.) When Evans entered the room, there was someone in it who had just spent ten minutes or so having sex with a woman and who, on the strength of that experience, believed she wasn’t too drunk to consent to it. Think about that. Could you really say that you were sure, beyond reasonable doubt, that such a reasonable man was wrong?

    There is simply no answer to this. It’s not surprising our host doesn’t care to reply.

    • John Smith

      I suspect that they cleared McDonald because the woman chose to go back with him, while Evans arrived later.That there are problems with this line of reasoning may not have struck the jury, after all they are lay people not legal experts.They don’t have to explain their reasoning or lack of it.Is there a debate to be had whether the jury system in its current form is the one that arrives at the best decisions in certain high profile or difficult cases? Maybe the system needs to be more transparent? After all the tabloids are full each day of ‘bad boy’ football behaviour (e.g. the notorious ‘spit roasts’) and everyone knows that they are paid too much anyway.It must be very difficult to keep an open mind with all this in the background.I don’t have an answer to these questions but it does seem, however, that once a jury has made its decision its extremely difficult to overturn it!

      • Jeff Sands

        Context is key here. She went back with MacDonald. Evans let himself in. The jury didn’t believe she was lying but they felt there was some small amount of doubt that MacDonald believed her capable of consent and that’s why they did not convict him. Rightfully so – if there’s any doubt you cannot convict. His lack of conviction makes that of evans all the stronger.

        • john cox

          When you say McDonald, of course, you mean a reasonable, sober man in McDonald’s position who knew the law.

        • john cox

          >Context is key here.

          Yes and no. It’s not key at all when considering the issue of capacity. There the only question is an objective medico-psychological one about the condition of the complainant. On the question of reasonable belief in capacity, it’s obviously relevant what information each defendant had, but not how they came to be in the room. On the question of reasonable belief in factual consent, it’s relevant how the complainant experienced the situation. On none of the relevant issues, though, is it ever relevant whether the defendant lied to obtain a key, for instance. The most that could be said about that is that it’s relevant to his credibility. But then since Evans evidence was for all material purposes the same as McDonald’s, it’s hard to see how their credibility could actually be any different, unless the jury somehow thought McDonald was telling the truth about his own experiences but lying about the complainant/Evans interaction.

          I don’t understand your last sentence at all.

          Btw I shouldn’t have said a reasonable man in McDonald’s position; I think in theory it’s McDonald himself in his own position, but sober, knowing the law, acting reasonably and having some of his own personal characteristics but not others. For practical purposes the same thing.

          • Jeff Sands

            They had some sort of doubt about McDonald and that’s all they needed not to convict him. It doesn’t mean they thought the girl was lying, just that if there is any shred of doubt you can’t convict. The girl appeared to consent to go to McDonald’s room but Evans wasn’t involved until later.

          • john cox

            Of course it doesn’t mean the complainant was lying; wherever did you get that idea? The complainant’s evidence was that she couldn’t remember a thing.

            >The girl appeared to consent to go to McDonald’s room but Evans wasn’t involved until later.

            There’s really not much point in talking about the decision at all if that’s all you can say. The basis of the decision was nothing to do with factual consent, but with capacity, and the main criticisms are (i) the evidence as to capacity, which on the face of it would have justified a direction by the judge that there was no case to answer, has somehow been found instead to justify a finding of lack of capacity beyond reasonable doubt, and (ii) if a sober and reasonable person in McDonald’s position, knowing the law, could have considered that the complainant had capacity, how could the jury find differently? How and when Evans got involved has nothing whatever to do with either of those two points.

          • Jeff Sands

            Just saw this – but the point is that there was reasonable doubt re MacDonald as to whether he thought she was capable of making a coherent choice. Not Evans. You can argue as much as you like, but you weren’t in the court room. They were.

        • John Smith

          If the jury had been worried about such niceties as ‘some small amount of doubt’ they would’nt have convicted either as a woman who can perform complex motor actions such as walking unaided in wedges and picking pizza off the floor and carrying it one handed shortly prior to sex is probably capable of consenting to sex.I think that people on this board credit the jury with more complex reasoning than they actually used.What do you need to serve on a jury? – basically a pulse.There is nothing to stop someone walking from the set of the Jeremy Kyle show and onto a jury unless they have a disbarring criminal record.Several friends who have served on juries have remarked on the ignorance/prejudice of their fellow jurors.You can argue that its the best system we have but that that does’nt stop them coming up with strange decisions sometimes.Maybe the process should be made more transparent.

          • Jeff Sands

            Do you have juries in such disregard all the time or only when – based on evidence that you are not privy to – they make decisions you disagree with? Your points have already been discussed over and over already on the thread so I’m not going to repeat them. The 2 appeals Evans attempted came to the same conclusion.

          • John Smith

            No it is a general observation that juries of ordinary, non-legally trained people who have prejudices like we all do so they can make mistakes, which some people here seem unwilling to admit.When they make mistakes they are hard to put right because the current jury-led system is held to be sacrosanct.Because they don’t have to justify their reasoning, it remains opaque.Appeals do not overturn jury decisions for being illogical or daft but because the judge misled them or other procedural reason.It may be time to reconsider this approach.Surely we all want better decisions don’t we?

          • Jeff Sands

            I don’t think people seem unwilling to admit that juries make mistakes. But why all the other cases, day in day out, are not reviewed and torn apart by people who didn’t see what the jury sees, is something that I don’t understand. Their reasoning, from what is in the public eye, does not seem opaque, and seems, from what is in the public eye (ergo, what you and I are seeing) to be quite justified. I don’t understand why this jury, as opposed to all the other cases, must have been wrong, stupid, or anything else thrown at them. I quite agree some sort of ‘basic intelligence test’ should be held for jurors, but not because of this case in particular. Considering how few rape cases actually get to court, let alone result in conviction, the reaction that the jury must have been wrong is very telling.

          • john cox

            >But why all the other cases, day in day out, are not reviewed and torn
            apart by people who didn’t see what the jury sees, is something that I
            don’t understand.

            It’s not very difficult to understand, surely? There are two fairly obvious reasons: first of all this is a high profile case, secondly the decision seems extraordinary to many people. I’ve discussed it with quite a few lawyers well placed to have a view. I think it’s fair to say that not one of them thinks the CA’s reasoning was incontestable.

          • john smith

            In addition to the point John Cox makes below.I think its important because its a potential criminaliser of a whole generation.The police have reportedly seen an upsurge in rape complaints since the case.
            The idea that people are not responsible for their actions when drunk needs to be challenged in my opinion. The idea that drunk consensual sex can later be uprated to rape is despicable in my opinion.It goes without saying that someone who is unconscious through drink is incapable of consent, but there is no evidence of that in the Evans case.

          • Jeff Sands

            That doesn’t mean any of these have been, either. There is no “criminalisation of a generation” – people have been having drunk sex, and regretting it, for centuries. The law doesn’t care about drunk sex. It cares about sex when one party is too intoxicated to consent. It really isn’t as simple – or as pleasant – to “cry rape” as people think. Most rape cases don’t (a) get reported to the police, let alone (b) be considered a case by the CPS if they are reported in the first case, let alone (c) get to any sort of conviction. As for an upsurge in rape complaints – perhaps it is because a rapist has been clearly convicted. That doesn’t mean thousands of women are ‘crying rape because they were drunk’. It also doesn’t even involve women necessarily. But it sounds like perhaps rape victims are realising they might just be listened to. The others in this girl’s case did not “call it rape later”. It was found to be rape from the start. But that discussion has been over and done with. Assuming all these ‘rape claims’ – about which you, I and everyone else knows nothing – are false, is rather like assuming that every person who complained against Jimmy Saville was lying just because one person happened to complain.

          • Jeff Sands

            Moreover, you do a generation of men and women a huge disservice. Most of them would not even consider sex with a woman or man so drunk you ‘had to’ step over them. People have said how would you feel if this were your brother – the answer is, my brother wouldnot dream of behaving thus and neither would most men I know (I cant pretend all the men I know are decent law abiding citizens, but those I count as friends are). Stop making out this was “drunk sex where she changed her mind”. If you really don’t know the difference you shouldn’t be partaking in sex. If in doubt, don’t do it.

          • john smith

            For the record I don’t believe she changed her mind, I can quite believe she remembered little the next morning.I have seen enough drunkenness to know this is’nt uncommon. I don’t know how old you are but 25 years ago when I was at uni drunken sex was pretty common especially during fresher’s week. From what my daughters tell me things hav’nt changed much.
            Now using the standard of capacity used in this case these freshers should be convicted sex offenders with ruined lives.Do you tjink this is in anyone’s interest? There is a hell of a difference between disaprpval of youthful social mores and consigning someone to a life as a sexual offender.Maybe we should adopt sharia law where social disapproval and criminalisation are one and the same.

          • Jeff Sands

            Only if they’re guilty of rape. I went to uni, si, had fun, did stuff i regretted, saw a lot of drunken shenanigans (not literally) and was aware of rape. And knew the difference.

          • john smith

            Yes but the way rape was defined in this case covers just about any drunken sex.

          • john smith

            To recap this woman was able to text, walk in wedges and carry a pizza shortly before sex.

          • Jeff Sands

            I don’t understand what this signifies. None of these things are particularly difficult. They are easily done by someone out of their head. She also fell over several times due to alcohol, including in front of Evans who stepped over her, but let’s pretend that didn’t happen as it doesn’t help our cause.

          • john smith

            But he did’nt have sex with her in the kebab shop it was later! Also do we know if he knew it was the same girl?

          • Jeff Sands

            Why don’t you ask the jury?

          • http://footylaw.co.uk Footy Law Blog

            I’m sorry, but this is just not true.

            The judge made clear – as commented on by the Court of Appeal judges – that drunken consent was still consent; and that if the victim had the capacity to consent they should find the two not guilty.

            The jury had to decide whether the victim was more than just drunk. That was a factual decision they reached based on more evidence than we have seen.

          • john smith

            The judge did’nt use those words because it ‘sometimes offends’ if he had the result may have been different! My point is that the law is as clear as mud on this because there is no objective definition of capacity for the jury to use.If we are going on evidence of decision making ability then the woman showed examples such as electing to go with McDonald,fetching the pizza,willingly going to the room etc.Because there is no objective measure of capacity it may well have meant a jury in Bristol or Birmingham may well have acquitted in some kind of postcode lottery.
            On the missing key evidence idea there can be none after the hotel cctv because we know that there were no independent witnesses in the room.Therefore other evidence must be further away in time from intercourse and so less indicative of the female’s state at intercourse.It would be like convicting me of drunk driving by taking an alcohol test an hour before I get in the car.It’s not an evidence problem it’s a logic problem.

          • Jeff Sands

            I disagree. Drunk sex is not rape. Ispeak as someone who’s done it and felt so ashamed afterwards I overdosed- but that wasnt rape and claiming it was would never even have crossed my mind. My friend was drugged then raped, and she couldn’t remember anything either. Grant most people with the capability to distinguish between the two, much as most men would have at the very least turned away from someone so drunk she fell over, rather than deem her a suitable secual partner. If this does criminalise people, it will be teaching both sexes to drink less and think a little more; and take more care of thenselves and each other. No bad thing.

          • john smith

            Obviously if your friend was drugged intentionally then it was rape.In your case I would’nt call it rape but going on the Evans decision his jury may have disagreed. That is what is so scary about this case.

          • Jeff Sands

            In no way would the jury have found my experience (which was my own fault) as rape, because there was no evidence to suggest that it was rape. There was plenty of evidence in this case, as there was in my friend’s case (what I find scary is despite eye witness accounts, medical reports and CCTV, plus the defence telling outright lies which were disproved, one member of the jury still refused to accept rape had taken place and it came down to majority verdict). I don’t find the outcome of this case scary at all. I find it reassuring that finally people might learn they cannot treat others like dirt and receptacles of their semen, regardless of what state they are in. I would only find it scary if I were someone who had taken advantage of someone’s intoxicated state. Which I wouldn’t.

          • john smith

            Yes but consent was’nt the issue here, capacity was.The woman could have handcuffed Evans to the bed and ridden him all night, it would’nt have mattered he still could have been convicted because the jury said she she didn’t have capacity.

          • Jeff Sands

            That isn’t what happened though was it. He had to judge her capacity. Having stepped over her, he’d already done that, and showed he didn’t care. We can argue about this ad infinitum – and to be honest, while I do find it interesting debating with you because you don’t resort to insults like others – you won’t change your opinion, despite the fact that the court know far more than you and your ‘well place lawyers’ (I also have friends who are legal, who find the verdict perfectly logical); and you won’t change mine. Quite frankly, I don’t want to hear the stupid sod’s name again. He can crawl under a rock for a few years, learn from his mistake, and for all I care, play football; I won’t be watching and neither will my children.

          • john smith

            I don’t even like football and share the common view that top footballers are pampered and over paid.But its about the principle.The principle that a man can be convicted as a rapist on such sparse evidence, on such a hazy conception of capacity.It worries me that were this definition of capacity be adopted widely my son would be a convicted rapist and believe me he is no rapist.

          • Jeff Sands

            If you were in the court room, you would have every right to claim the evidence was sparse and the jury had no conception of capacity. But you weren’t, so you don’t.

            I’m sure people claim Evans is ‘no rapist either’. But he was. I don’t care if he’s a footballer or a vicar or a pig-swiller. He’s also a convicted rapist who didn’t even realise he was committing rape because the woman’s rights did not occur to him. But now they do, and now they will. If your son would be in your eyes a convicted rapist, he’d better be a little more careful about ensuring the capacity of people he has sex with. Oddly enough, none of the men I know and count as friends (or relatives) would be a convicted rapist – they’ve had drunk sex, but that’s quite different.

          • John Smith

            ‘Oddly enough, none of the men I know and count as friends (or relatives) would be a convicted rapist – they’ve had drunk sex, but that’s quite different.’

            But that’s the whole point it is’nt different! I agree with you that most people would’nt consider consensual drunk sex (I’m not including spiking or plying in this) to be rape, rightly so in my opinion, but in this case it was.If the woman had not consumed alcohol there would have been no rape conviction for Evans.By the standard applied in this case your friends probably would have been convicted of rape whether you think they were rapists or not.

          • Jeff Sands

            Sex with someone too intoxicated to consent is rape. It comes down to that. The law honestly doesn’t care about straightforward drunk sex – if it did, then there would be a hell of a lot more complaints! The law cares about cases where one of the ‘participants’ is too intoxicated to consent. It’s no different to sex with someone who’s had a head injury, apart from the fact the “doddlement” is self-inflicted. Which is exactly what happened here. All you have to do is drink a bit less – both sexes – and be a bit more cautious about who you sleep with. It really isn’t asking a lot. A rape conviction will not arise from someone having downed a glass of wine and regretting boffage the next day and saying “Excuse me, I think I’ve been raped”. It is very unlikely to even be considered by the CPS, let alone get to court. It simply will not – and rightfully so. You’re still basing your beliefs on, as you say, ‘sparse evidence’ because you haven’t seen all the evidence, and base your assumptions on what the media – and Evans’s supporters – allow you to see.

          • John Smith

            Ok, I respect your position, I think I have covered the ‘you don’t know the evidence’ argument at length in other posts (as have others such as John Cox) and so won’t do that again here.We are not going to agree on this but thanks for discussing this with me in a respectful and mature way without recourse to name calling.Cheers.

          • Jeff Sands

            It does get a bit exhausting doesn’t it 😉 Likewise, thank you for doing the same; I do appreciate it. Whatever comes from this, I hope that everyone, of both sexes, learns to take better care of themselves, and each other.

          • EAB

            No, but it would result in an automatic arrest and probable incarceration for 24 hours whilst the man is forced to have his dick photographed and swabbed. Then the girl can just go “Well I thought it was rape”, end of story. The guy however could probably never work in an area with enhanced DSB checks due to the stigma and lack of interest in the issue, that it is far too easy to accuse people of rape. That’s the reality these days. And in some cases, arguments as dubious as that are considered by the CPS and reach court, as evidenced by a 2010 case of a black man. Woman still anonymous.

            http://www.dailymail.co.uk/news/article-1280926/Student-cleared-rape-emerges-second-man-committed-suicide-falsely-accused-woman.html

          • http://footylaw.co.uk Footy Law Blog

            If your son penetrates a woman (or man) with a penis when the other person is unable to consent through lack of capacity; then, believe me, he is a rapist.

            I’ve said to several people that if they don’t like the law they should campaign to change it or discuss it in a politics blog.

            In your case, I suggest you spend all your efforts on getting your son to change his behaviour.

          • John Smith

            Ok, I understand your position.But answer me this one question; do you feel that the law provides clear,unambiguous and objective standards by which a jury may measure ‘capacity to consent’? For example if I were tried in Bristol, Cardiff or Manchester is there a high probability that the same verdict would be reached by these different juries based on the same evidence in front of them? Do you have this confidence?

          • http://footylaw.co.uk Footy Law Blog

            Your argument is essentially political, rather than legal.

            The law is what the law is. Cases can only be prosecuted based on what the law is; not what the prosecutor wants it to be.

            Likewise, the jury can only decide cases based on the law as it is explained to them by the judge; not on whether or not they agree with that law.

            If you feel that Ched Evans was hard done by because the law should be different; that’s a valid argument. But it is not one that the courts will entertain when considering the verdict – that’s Parliament’s job (unless the law is wrong in law; but Ched Evans’ legal team haven’t argued that).

          • EAB

            Not all rape claims are false, but an awful lot are. I don’t know percentage wise, but if only 5% of allegations are demonstrably false, that is 600 a year. I personally believe it is far higher than 5%. I believe a lot of false rape accusations are not pursued legally by the accused for the exact same reasons as rape is not reported by women. Shame, fear, feeling they brought it on themselves (most of these incidents are sleazy). But a massive barrier is cost and lack of public interest. Look at Ben Sulliven, he had a facebook message from his main accuser stating her friends had assumed he raped her because she cried the next day, but she stated she had cried because she was unfaithful and didn’t want to be seen as a cheat, so let them think! She promised to iron it out, then a year later she made an accusation. Bizzarre. It is the female equivalent of raping a man. After a woman was convicted of making 11 false rape complaints, some people asked “How come she wasn’t stopped sooner?”. The police only brought the case because the last allegation was filmed (by a seemingly fortuitous) CCTV camera in the defendants house. Most rape complaints are dropped due to insufficient evidence, which could be on either side. Even if the original statement is proven to be untrue, it is only in extreme cases they prosecute, and usually they just won’t because it is not popular, invoking the CPS “public interest” clause. An exception to this, I believe, is the case of Layla Ibrahim, whose story results it what appears to be harassment by the police to her siblings over the years. The justice system is incredibly autistic in some respects, but the incentive to make false rape allegations is very high.

          • Jeff Sands

            It really is not and you demonstrate both your agenda and ignorance in claiming such – ignorance of the law, of what’s involved when you ‘claim’ rape, and of the actual facts. You pluck statistics out of the air and parade them as the truth. As this thread has now descended into the old “false rape claims are rife” nonsense I shall participate no further.

          • EAB

            Hey Jeff, the official figures are about 5%, you don’t like it? 12,000 allegations are made a year, that is 600 a year or nearly two a day. I personally believe it is higher, can’t say how high, but I have my first hand reasons for this belief. I will also state categorically that I also believe that the reported cases of rape are lower than occur, any one with a genuine complaint should come forward. That isn’t a controversial view. A close female relative of mine was raped by a 19 year old when she was 14, she could press charges today about 20 years later, wish she would. She in our discussions also understands that liars come in both genders and is open to proof of any complaint.
            The type of women who make false allegations are quite nasty, and we are gaining a situation akin to where it was decided men should lose anonymity, for getting away with it so often at the accusation stage. That is after all why men are named at arrest stage, with the assumption there could be other victims. Why did Ben Sulliven’s accuser, despite writing to him that he did not rape her, then go to the police and accuse him of rape? She is anonymous, we can’t ask her what her motivation was. Sounds like a good way to get back at someone to me.
            I used to work with a girl who was sent to prison for making a false rape accusation, but only because her father was a police man and she should have known better. Otherwise, it is very unlikely she would have been prosecuted, and the police said so themselves.
            http://www.telegraph.co.uk/news/uknews/law-and-order/5690710/Policemans-daughter-denies-false-rape-claim-after-sex.html

          • Guest

            Give me a figure you want backed up? Or a link to the story? What have I plucked from the air.

          • EAB

            Here’s my sources:
            Arrest with no investigation of “rapists” who had never met the complainant:
            http://www.dailymail.co.uk/news/article-2767792/Fantasist-jailed-2003-falsely-claiming-raped-Neil-Christine-Hamilton-bars-lying-wrongly-telling-police-husband-attacked-samurai-sword.html
            5% False rape Allegations
            http://www.bbc.co.uk/newsbeat/21016808
            11 false rape allegations.
            http://www.telegraph.co.uk/news/uknews/crime/9894588/Compulsive-liar-jailed-after-11-false-rape-claims-in-decade.html
            One guy free, one killed himself, woman anonymous:
            http://www.dailymail.co.uk/news/article-1280926/Student-cleared-rape-emerges-second-man-committed-suicide-falsely-accused-woman.html
            Anything else? Please enlighten me what I don’t know about the process of a rape allegation. Here as explained is the process of automatic arrest upon allegation, before any preliminary investigation: http://www.dailymail.co.uk/news/article-2348532/The-woman-accused-stranger-Facebook-rape–ruined-victims-life.html

          • EAB

            Good point. There is a famous video of a drunken girl who is being punched in the face by a british police man, because she is digging her nails into his balls. She claimed she was too drunk to remember what was going on. Well, legally punching her in the face was just fine, so long as a cop is doing it. Did she get off for her violent behaviour because she was drunk? No. Do drunk drivers not go to prison for their stupidity? Sure, So why did Ched Evans sit in a cell for 2 1/2 years because a girl said she can’t remember what she did on a night out, but was clearly able to walk, talk and ask “you’re not going to leave me are you?” to MacDonald, showing she knew where she was and didn’t want to be alone.

          • John Smith

            Unfortunately there will be more cases like this because the Director of Public Prosecutions has made it clear that in future rape cases the onus will move onto the defendant to prove he gained consent rather than the prosecution to prove he did’nt; rather a reversal of the principle ‘innocent until proven guilty’ I would say.Although I think there are loads of holes in this particular case my main problem with it is that there is no objective measure for the jury to adjudicate ‘consent capability’ of the ‘victim’.

            The trial judge said “A woman clearly does not have the capacity to make a choice if she is completely unconscious through the effects of drink and drugs, but there are various stages of consciousness, from being wide awake to dim awareness of reality. In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. So you will need to consider the evidence of the complainant’s state and decide these two questions: was she in a condition in which she was capable of making any choice one way or another? If you are sure that she was not, then she did not consent. If, on the other hand, you conclude that she chose to agree to sexual intercourse, or may have done, then you must find the defendants not guilty.” Now I would say going on this direction the woman had showed plenty of evidence of being ‘capable of making any choice one way or another’ to result in a ‘not guilty’.The choices she made to get in the taxi, text her friend,remember the pizza,enter the hotel unaided etc.How the jury thought otherwise we will never know.

            This haziness about consensual capability potentially means that any man who has sex with a woman who has consumed alcohol could find himself on a rape charge (even if he is married to her!).

            As an aside I would be interested to know what the new evidence which has been submitted.The only thing I think which could make a difference is an authenticated text from her showing that she knew a lot more about that evening than she admitted to the police.

          • EAB

            There is just conjecture in this case. In this type of situation where it is word against non-word, maybe something about the complainants character has come up. A past conviction, a scandal, past accusations made where the defendant got in touch and reveals a pattern, all that has to happen is someone has printed/sent off a facebook conversation, someone has verbally stated something, she has been secretly recorded, something she has written has been found etc etc. This is all stuff the police have not, and will not, ever, investigate. Bearing in mind there is £10,000 reward for information that leads to Ched’s acquittal, Don Hale on board who has overturned 5 false convictions through his work (and did his best to publicise sex abuse in the 70s to be shut down by Special Branch) and an investigator who used to be a police man that worked on sex crimes (wonder why he accepted the case?) working for Ched, these things are quite possible.
            It needn’t be insinuated there has been malice in the actions of the complainant if things are not as they seem. Having said that, upon being abandoned and finding out some footballers mates filmed you through a window, would you be happy? All it requires is for her to have said once “I remembered what happened…” and that statement could compel new proceedings. It is even possible she may have tried to retract things or stop the case at some point, but was prohibited from this by the police. This is NOT as crazy as it sounds. I worked with someone who got two years for making a false rape allegation. If at any stage the complainant asked her solicitor the consequences of changing her testimony or “retracting” the proceedings (brought by the police not her) I would not be surprised if that solicitor (who gave Ched Evans’ family his condolences upon winning the case), advised her to keep quiet.
            I know it isn’t a simple case. In particular in these crimes where women who are traumatised would rather not go through it, the police are trained to avoid retractions.
            An ex-girlfriend of mine accused an ex work colleague of hers’ of attempted rape at work to about 20 people around my town before I even met her, but never to anyone in authority. When I suggested she go to the police, she’d tell me she made it all up then start crying. I am not sure until this day what on earth was going on, but at the time I believed she had been attacked. Since then other things have come up that lead me to wonder about her motives.
            Sometimes it takes a long time for any new information to come to light, and sometimes in the most unexpected ways. in the case of Brian Banks the girl wrote to the man she accused of raping her to apologise and wish him luck. Then they met up and he secretly recorded her with an investigator and she admitted she lied, they had not even had sex. Of course, she “couldn’t admit it officially” because she would have to pay back compensation her mother sued the school for. I feel empathy for someone in a situation like that. If Ched is innocent, he hasn’t had it anywhere as bad as Banks.

          • John Smith

            Slightly off topic but still on the ‘false accusal’ line I used to work with a chap nicknamed ‘hatchet’.He was named thus because he had a bitter ex-girlfriend who would dob him in whenever there was a local publicised serious crime.He achieved his nickname because on one notable occasion he received a ‘6 in the morning, front door-smashing’ visit from the ‘boys in blue’ after she had tipped off police he was the guy who had just held up the local post office with a hatchet! ‘Hell hath no fury’ and all that.Interestingly people who say ‘the victim is not on trial’ would have to say that such information about previous false accusals is of no relevance to whether he was guilty or not.Utter tosh in my view.

            For my part I have no idea whether the female in this case remembered the events or not (I am always amazed after a lads’ night out with friends who say they can’t remember a thing!), but either way this conviction is a strange one to me.

          • EAB

            This is an incredibly rare case, where the complainant has made no allegation. Everything has been jigsawed together by prosecutors, and I wonder, with others, did the girl really have amnesia or not. I don’t believe she did. But that is because I believe she was walking, talking, speaking and behaving like someone who was not incredibly drunk by the time any sex occurred. Really, this is a one of the few cases Jeremy Kyles polygraph tests could be put to good affect, on all three of the involved.

          • john cox

            He hasn’t attempted two appeals. It’s all the same appeal.

      • john cox

        The CA, of course, are not lay people, nor the judge. That doesn’t mean we have to look at their reasoning and agree with it.

        In the Duggan inquest (or whatever it was exactly; I’ve forgotten the exact legal course of events) the jury had to break their verdict down by answering questions listed by the coroner. Maybe it would be good if criminal juries could be made to go abot it that way as well.

    • http://footylaw.co.uk Footy Law Blog

      “Your host” doesn’t care to reply because you are attempting to dominate the thread. You’ve made your points; I’ve responded but we’re going on and on and on.”

      I generally only respond so many times to people – but in your case I stopped commenting when you said: “Men
      seem to get over having sex when they were legally too drunk to consent more
      easily than women do” – a disgraceful comment to make in the context of a discussion about rape as it seeks to completely deny that rape exists; and that it is merely “having sex”.

      I have met hundreds of victims of rape and sexual violence; I speak with those involved in counselling and supporting victims – male and female – and know that the trauma caused by rape can last for years and be set off years down the line by “trigger” events.

      Comments such as yours do much harm. Disgraceful from anybody – even worse coming from a solicitor. And so, no. I will not respond to you to feed your apparent need to deny that rape exists in circumstances like this case.

      Why are you so keen to dominate this thread? Are you posting on your own behalf or are you instructed – in this or in any other matter – by Ched Evans or his supporters – including the Massey family?

      • john cox

        Of course you haven’t responded. Not to my arguments – not that they’re only my arguments, of course – about why the CA was wrong. It’s true that you replied with some total nonsense about s 41 YCJEA 1999, either because you will say anything at all to promote your views to the ignorant, or because you yourself genuinely don’t know anything about it

        >as it seeks to completely deny that rape exists; and that it is merely “having sex”.

        With respect, this is a foolish thing to say. For one thing, because an act can be fairly described as x, that doesn’t suggest that it can be fairly described as ‘merely x’, For another, I was not describing events all of which can possibly be described as rape, but that class of events in which one of the participants, either male or female, is too drunk properly to consent, As you know, half of those cannot be rape by law (assuming that in half of them it is the man who is too drunk and in half the woman).

        Moreover, it’s obvious that there are far, far more prosecutions under section 1 of the act than section 4 (the inverse of rape). Why do *you* think that is?

        >I have met hundreds of victims of rape and sexual violence; I speak with
        those involved in counselling and supporting victims – male and female –

        Yes, that doesn’t surprise me. It accounts for your emotional involvement and obvious bias.

        >And so, no. I will not respond to you to feed your apparent need to deny that rape exists in circumstances like this case.

        Don’t be so silly, to say nothing of insulting. We all need to know what the law about capacity is. The only way we’re going to do that is by discussing it, and that is going to involve people with your views interacting with people who don’t share them, preferably without foolish abuse.

        I like to see the statutory elements of offences “proven” before the state puts people in prison. I lke to understand what the law is. That’s why I’m interested. I might equally talk of your ‘need’ for the law to be such and such. That wouldn’t be helpful either.

        >Why are you so keen to dominate this thread?

        I can often be provoked by (i) injustice, (ii) the mob seeking to ruin individuals and (iii) people posting nonsense about the law (not necessarily you, though you’ve certainly made at least one very wrong assertion about it, but other posters).

        >Are you posting on your own behalf or are you instructed

        Ha! I’m flattered. No, I’m not instructed. Believe me, if I were the famous website would look very different.

        • Jeff Sands

          Mobs seeking to ruin individuals? They did that very well to the victim in this case. I hope you were equally provoked by her treatment.

          • john cox

            I condemn it utterly, obviously. Someone linked to her name on here. I very much home our host has reported him to the appropriate authorities with the appropriate technical evidence. The sentences given to those convicted of tweeting her name should have been far harsher, in my view.

            I don’t feel inspired to write much about that, though, because everyone agrees about it. If Call Me Dave and Wet Ed were to feel the need to speak in support of the mob, and there were blogs and newspaper articles all over the internet saying how right they were, I would probably have felt differently.

          • Jeff Sands

            Fair enough and yes I agree. I reported the link to the police as well.

  • john cox

    On the theme of how the CA dismissed the appeal and they’re never wrong, by the way, there’s something every lawyer knows about the CA, but I always forget lay people don’t.

    That is that the CA is made up almost entirely of barristers and entirely of people who have been very successful in the legal system. Their self-worth tends to be very tied up in those two things.

    Consequently, the CA’s first concern, at all times and in all circumstances, is to protect the reputation of the Bar (solicitors are to be pissed on wherever possible, of course, as with all courts). Its second concern is to uphold the reputation of the legal system. Only once everything that can possibly be done to achieve those two objectives has been done do its thoughts turn to such matters as the law and justice.

  • john

    This case is bullshit. Drunken consent is a massive grey area. If consenting to have sex when drunk means rape, then if 2 people meet in a club and have both been drinking, then decide to have sex that night, who raped who? Also, even if one party has only been drinking, how is the other party somehow meant to be clairvoyant enough to know if and
    when the other party has crossed the (entirely subjective) line from being able to make decisions as they would sober, and making a different decision because their blood alcohol level has increased? How can they possibly know one way or the other? Madness.

    What’s to stop this rule on drunken conscent allowing anyone to accuse and convict anyone else of rape after consentual sex? Alcohol leaves the body in 24 hours. Or of course you have the option of drinking a bit, having sex and then crying rape, even though you knew you were still in charge of your faculties at the time.

    The only way this would stop is if men and women separate sex from drinking, and in our culture that just isn’t going to happen. Sex and pubs and clubs are intertwined in our society.
    Half the reason people go out drinking is to possibly meet members of the opposite sex. How many times does a consentual one night stand happen with no alcohol at all involved??

    I went out on a first date with a girl once. We met at a pub, had some drinks. It went well, so we went for some food. Then we went for more drinks. Then it transpired she had missed the last tube, so she came back to mine. We opened a bottle of wine. That night we had sex. Was she drunk a bit? Probably. Was I? yes. I didn’t plan it, it just happened. Should I have
    been arrested for rape the next morning? Under these rules apparently I should have been. Stupid. Under these rules, apparently SHE should have been as well, because I was under the influence.

    Madness.

    • john cox

      Those are more or less the facts of R -v- Bree. An instructive read. Although in that case they went back to the flat they both shared.

    • http://footylaw.co.uk Footy Law Blog

      You ask “who raped who?”

      In the scenario you describe it; nobody raped anybody.

      However, if a man penetrates a women with his penis without her consent, given when she had the capacity to consent, and he had no reasonable belief that consent existed, then he raped the woman (under the law as it stands in England and Wales).

  • Jane

    As I understand Ched Evans was paid his £20,000 weekly salary for 4 months while he was in jail. This was so Sheffield United could honour their contract with him.
    Looking at this from a different angle – I am interested to know what the legalities would be of clubs inserting a “morality clause” in future footballers’ contracts, to stop any players convicted of criminal offences being seen to be rewarded for their bad behaviour.

    • http://footylaw.co.uk Footy Law Blog

      There is no need for a morality clause. A conviction for a serious offence would count, in employment law, as a gross misconduct allowing a club to terminate employment forthwith.

      And if footballers are self employed contractors rather than employees; they would be in breach of the contract by dint of being locked up: they are unable to perform their part of the bargain.

      The fact that Sheffield Utd continued to pay Ched Evans’ after he was convicted (something which, to be fair, the club have not confirmed; but neither have they denied); was entirely in their hands and is for them to justify to their fans and shareholders.

  • Melita

    What about clayton mcdonald human right

    • http://footylaw.co.uk Footy Law Blog

      What about them?

      I don’t understand your comment. Did you have any specific human rights in mind?

  • EAB

    Just my opinion, but I think cases such as this are relevant in redressing the balance between a certain individual claiming Clayton Macdonald “got away with it” like “most rapists” and claiming people are “rape apologisers”. http://www.dailymail.co.uk/news/article-1280926/Student-cleared-rape-emerges-second-man-committed-suicide-falsely-accused-woman.html
    This case involved nights out and sleazy one night stands. It also shows just how much information is repressed about rape complainants, whereby the defendant only found out upon being found not guilty the woman had done the same before, and essentially taken a life. And, to top if off, if he had been found guilty, he would have NEVER found out about her past allegation.
    The link to this case in my opinion, explains why so many people are dubious about the Ched Evans case, and the ridiculous concept that the accuser should not be under scrutiny.

  • Melia Windsor

    Actually, Ched Evans doesn’t say he didn’t do it. He is open about the fact that he did what he is accused of. In fact, the prosecution case against him was based on his own account of what happened in the hotel room – the victim has no memory of what happened.

    He acknowledged having sex with her, not to raping her.

  • Liverpool Lass

    Here we are 2 months further on and so far Ched Evans isn’t playing foot ball.
    Does anyone have any news about this “fresh evidence” that is supposed to get him a re-trial?

  • DM

    Do you want to update your blog with the latest news that the Ched Evans website will not face any legal action?

    • http://footylaw.co.uk Footy Law Blog

      No, I don’t, because this isn’t a news site.

      Your comment has put this development on the record and I’m content with that.

      • DM

        Shame. In your blog you mention three areas where you think the law might have been broken with regards to Evans’ website but actually none of them are valid. Some people may think you haven’t actually sifted “facts from fiction” if they don’t happen to read the one comment of 692 that clarifies the actual facts.

      • DM

        This blog is starting to look as shaky as Evans’s conviction. Look at all the lovely stats you gave as reasons why he wouldn’t get an appeal… And guess what?

      • DM

        Oh dear, turns out your blog was completely wrong just as I told you at the time… guess you don’t know much about the law after all

  • Sonarz
  • john smith

    Congratulations to Ched Evans on winning his retrial- I have no doubt he will be found not guilty if it gets that far. What I find interesting is that people were using his insistence of innocence as ‘lack of remorse’ showing why he had’nt been rehabilitated and should be further punished by being denied his livelihood in sport.Hopefully he can put it behind him and get on with his life.

  • OMGWTFZPMBBQ

    The offense here is exploitation of someone in an unfit state. This should be a separate crime in its own right, to avoid future confusion and a public consultation held to decide just how severe the punishment should be. Also the mistake here was to ever permit Evans to have his career back, irrespective of the appeal or otherwise it brings the sport into disrepute.

    • john smith

      If the the complainant was ‘in an unfit state’ i.e. without decision making capability, Ched Evans would have been found guilty of rape by the jury. He was found not guilty as there were many examples of her demonstrating such capacity e.g. sending texts etc.. Having said that a future ‘code of conduct’ for pro footballers might be a good idea …

  • Jim

    In light of today’s verdict, looks like the majority of the above article was incorrect.

    • john smith

      Maybe change the title of this site to ‘Sifting fiction from facts’ maybe?!

  • john smith

    After 5 years justice has finally been done – but not before Evans has spent 2.5 years in jail, been forced to sign the sex offenders register,lost some of the best years of his career, prevented from gaining re-employment in his chosen profession (until the appeal) and seen the tagline ‘convicted rapist’ against his name in an almost uniformly hostile media. Evans was ‘lucky’ in that he and his family had the means to challenge the prosecution. How many other innocent men may be languishing in jails on false sexual convictions without the means to fight them?

  • Ted Thomas

    You should do a follow up to this after today’s verdict.

    • john smith

      Seems our host has left the building!

      • Ted Thomas

        Shame: She, He or whoever it is is a quality researcher and writer.

        • john smith

          This case has always been a bit of a Rorschach Inkblot Test in that people have found the ‘facts’ they wanted to find. More spin than a Tony Blair spin doctor !

  • john smith

    By the way if the author of this ‘fact’ based site ever returns can they please remove the inaccurate and offensive wording that states Ched Evans to be a convicted rapist.Thank you.

  • Jane

    Therefore he knew that the girl in room 16 was “sick”,(because McDonald had told him) and he had just given Evans a key to that room, in which he now believed sex was takingplace. So why did he not challenge McDonald (who was still in the foyer) about mulitple occupancy (which was against hotel policy)?

  • Jane

    You’ll see where my argument is going in a minute.
    So did the hotel receptionist/porter admit to giving Evans a key?