Last week, a jury at Cardiff Crown Court returned a unanimous verdict of not guilty in the retrial of football player Ched Evans, following his original conviction for rape in 2012.  The Court of Appeal’s decision to quash the original conviction and allow the retrial, based upon fresh evidence of the complainant’s sexual activity with other men, has attracted much criticism.  In the main, this criticism has paid little attention to the precise grounds upon which the decision was made and failed to appreciate the important balance that must be struck in all such cases: that between the rights of the individual and ensuring the trial proceedings are fair. 

The fresh evidence came from two men who describe having sexual relations with the same woman in the days before and after the alleged rape. However, critics claim that evidence of the woman’s sexual behaviour should not have been introduced at all.  Section 41 of the Youth Justice and Criminal Evidence Act 1999 prevents the introduction of a complainant’s sexual behaviour in cases of rape and is seen as an essential safeguard against what are known as the twin myths, namely that ‘unchaste women are more likely to consent to intercourse and in any event are less worthy of belief’.  In a Guardian  article published on the day of Mr Evans’ acquittal, Lisa Longstaff of the group Women against Rape was quoted as saying the decision seemed a “throwback to another time”. She went on to add, “Here they’ve driven a coach and horses through the supposed protection”. 

However, are these claims fair? The judgment reveals that this was an unusual case.  The evidence was not admitted simply because it showed the woman engaging in sexual behaviour with other men. Rather, it was based on a far more detailed consideration of relevance in accordance with specific exceptions provided for within the section 41 criteria.  

The issue at trial was either whether the woman had the capacity to consent, or  whether Mr Evans reasonably believed she consented.  The Crown’s case was that she did not have the capacity to consent owing to her level of intoxication.  The woman said she couldn’t remember what happened.  Mr Evans however described how she adopted a position on all fours using specific words of encouragement and as such was not only capable of consenting but in fact did consent.  

The fresh evidence came from two men who both described sexual encounters with the same woman. The first of these alleged encounters occured on the day before the alleged rape, with the second taking place  two weeks later.  The men describe how she directed sexual activity by adopting the same sexual position - encouraging them to have sex with her from behind and using similar words of encouragement to those described by Mr Evans. 

The exception to the general ban on such evidence being given is found at section 41(3)(C)(i) which allows for the introduction of sexual history “where it relates to consent and is of sexual behaviour which is so similar to any sexual behaviour of the complainant which, (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused…that the similarity cannot reasonably be explained as a coincidence”.

During the appeal hearing, both parties agreed that in principle the above criteria applied to this case.  Whether the evidence was sufficiently relevant to be admitted came down to the question of the degree of similarity between the fresh evidence and Mr Evans’s own account.  

In their judgment the Court of Appeal adopted a balanced and considered approach.  Lady Justice Hallett’s concluding remarks state that “we are acutely conscious of the hurdle facing any defendant in persuading a trial judge that evidence of this kind from third parties is admissible”. 

Ms Laws, on behalf of the Crown, argued that the sexual position allegedly adopted by the woman was far from unusual and the words of encouragement she was said to have spoken are commonplace.  The Court found weakness in this argument and took the view based on guidance provided by Lord Clyde in the case of R v A (No. 2) [2002] 1 A.C.45  that similarity does not need to be rare or bizarre conduct so long as it is beyond what could be explained as a coincidence.  

The Court placed emphasis on the unusual nature of the case. Mr Evans was the only person who could give evidence of the sexual activity, as the woman herself said she couldn't remember.  If his evidence was not believed by a jury, his defence would fail.  They concluded that the specific instances of sexual conduct described by the two men were, in this case, sufficiently similar to Mr Evans’ account in terms of the woman’s proactive role.  The similarity lent weight to Mr Evans’ account in important aspects that went to the central issue of consent.  On this basis, they found the evidence to be relevant and admissible. 

The criteria in section 41 provides for a balance to be struck between the rights of an individual and fairness of the overall proceedings.  Rather than undermining the provisions or setting an unhealthy precedent, the Court of Appeal seemed at pains to correctly apply the section 41 criteria to the unusual circumstances of the case.  It should not therefore be seen as opening the door to routine admission of evidence about a complainant’s sexual behaviour and should not deter victims of rape  from reporting in the future. 

Robert Conway is a Director specialising in  Criminal Defence at law firm Vardags.