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:
- Ched Evans is a convicted rapist.
- 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.”
- 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.”
- 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”.
- 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.
- 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.