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Why the Ched Evans verdict does not set a dangerous precedent

The decision to allow the complainant's former sexual partners to give evidence was rare and should not deter sexual assault victims from coming forward.

The acquittal last week of footballer Ched Evans at his retrial for rape has, if media reports and trigger-happy talking heads are to be believed, set a dangerous new precedent in cases of sexual violence.

“A disturbing precedent that could deter women from reporting attacks”, reported the Daily Mail. “A throwback to the 1980s” thundered the Guardian. Similar sentiments were expressed by former solicitor-general Vera Baird Q.C., who solemnly advised BBC Radio 4’s Today programme, “This has set us back 30 years”.

The source of concern was the ruling, which lay at the heart of the Court of Appeal’s decision to quash Evans’ original conviction, that the complainant, X, could be cross-examined, and evidence could be called, about previous sexual activity that was alleged to have occurred with two separate males in the period before and after the alleged rape.

The bare facts of the case are well-rehearsed, and set out in more detail in the Court of Appeal’s judgment In short, on 29 May 2011, Evans and his co-accused, Clayton McDonald, had sex with X, in a hotel room. McDonald had met X on a night out, taken her back to the room, and had texted Evans, who promptly made his way to the room and, seeing McDonald and X having intercourse, joined in. X woke up the following morning, professing to have no memory at what had taken place. Both men admitted that they had had sex with X, and were charged with rape, on the basis that X was too drunk to consent, and that neither man reasonably believed that she was consenting. Both men asserted that they reasonably believed that the complainant was an enthusiastic and consenting party. At the first trial, McDonald was acquitted. Evans was convicted and sentenced to five years' imprisonment.

So how on earth does a complainant’s previous sexual behaviour come into it? In general, the answer is that it does not. Section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits questioning a complainant in a sex case about their sex life. The purpose, sensibly, is to destroy the myth that “unchaste women are more likely to consent to intercourse and are in any event less worth of belief”.

Section 41 then sets out limited exceptions to this rule, which may be engaged where “a refusal [to allow the questions or evidence] might render unsafe a conclusion of the jury on any relevant issue in the case”. Section 41(3) provides that, where a relevant issue is consent, one of the limited exceptions for allowing evidence of sexual history is where the previous sexual behavior is relevant and “so similar” to the complainant’s behaviour during the event, that “the similarity cannot reasonably be explained as coincidence.” This, the Court has said, presents a “high hurdle of relevance and similarity” for the defence to clear in order to succeed in an application. There is a further condition that no evidence can be admitted where the purpose of so doing is to impugn the credibility of the complainant.  Put loosely, the section is designed to prevent sexual history being used to embarrass, discredit or plant nasty seeds in the minds of the jury to evoke ugly, olden day mores about sexual promiscuity.

In Evans’ case, it was said that the exception in section 41(3) was met, due to the emergence of fresh evidence. This came primarily in the form of two witnesses, S and O, each of whom said that he had slept with X around May 2011, and that she had instructed him to have sex with her “doggie style” and had urged him to have sex with her “harder”. Relevance? Well, when interviewed by police in 2011, Evans told them that X had performed oral sex on him, before adopting a position on all fours and instructing him to “fuck me harder”. This, the defence said, was relevant to the issue of consent – if Evans was right, it would support his assertion that X was a capable and consenting participant. If would further bolster the reasonableness of his belief that she was consenting. The fact that X had used this similar behavior – the sexual position and the words — on two other occasions made it more likely that Evans was truthful when he said it happened with him, and was therefore relevant to supporting this aspect of his defence. It is important to understand this reasoning – it is not to suggest that “X slept with S and O consensually, therefore she consented with Evans”. That is not the reasoning at play, and the jury at the retrial would have been directed as such.

What qualifies as “similar behaviour”? Well, the test for “similarity” has been established by earlier case law as not requiring that the conduct be “rare” or “bizarre”, merely that it “go beyond the realm of what could reasonably be explained as a coincidence”. The combined effect of X’s words and actions were said by the defence to clear that bar.

When this was argued in the Court of Appeal, the prosecution disagreed with the defence analysis, submitting that, even if the new witnesses were to be believed, there was insufficient “similarity”. What X said and did was fairly unremarkable.

This, to me, is an arguable point. To borrow from a legal colleague’s tweet, the sexual position adopted and words used are almost a modern “porn trope”, and are far more common nowadays perhaps than in the youth of the Court of Appeal judiciary. Beyond coincidence, or verging on the threshold? I don’t think it’s easy to assert either way. However, even if the Court of Appeal’s finely-balanced judgment was wrong in this case – and it is always a difficult exercise balancing the rights of complainants against the rights of the accused – it is, in my view, a leap to suggest that this has established a precedent, or loosened the strictures of section 41.

In accepting the defence argument “with a considerable degree of hesitation”, the Court of Appeal emphasised that this was an unusual case, and that it would be rare for it to be “appropriate to indulge in this kind of forensic examination of sexual behavior with others”. This explodes the “dangerous precedent” narrative. Prosecution advocates in Crown Courts across the land will draw judges’ attentions to these remarks should defence advocates try to rely upon Evans as establishing any new point of principle. Section 41 will continue to be applied strictly, and the real danger, to me, is the deterrent effect of media misreporting and scare stories on present and future victims. This decision does not herald open season on complainants in sex cases. Indeed, comfort for those seeking it can be found in the margins of the Court of Appeal judgment: O initially gave a statement for Evans’ first appeal in 2013, in which O said that he had had sex with X, and that he “couldn’t understand why X would sleep with someone so soon after a rape”. “S” gave a statement to the defence designed to show that X had slept with him just after meeting him. This evidence was wisely not relied upon by the defence, as it would have been exactly the type of nudge and wink to inadmissible, myth-reinforcing irrelevance that section 41 was designed to prohibit.

Certainly, there are other elements to the case that to an outsider could appear unsavoury, particularly relating to how these new witnesses emerged, and what they already knew about the case at the time they gave their statements. The £50,000 “reward” put up by Evans for fresh evidence is troubling. Questions to be asked, certainly, but questions that were asked, in the Court of Appeal and before the jury. All the “what-ifs” advanced by commentators who were not in court for the full trial were almost certainly litigated in front of the jury. They were certainly not litigated in front of Twitter.

My personal preference would be that little more is said about this case in the media. It is an unpleasant affair on a number of levels, with little to be usefully learned by reheating online. If it must be examined, I would plead that this be the take-home: a decision to allow evidence of sexual behaviour is rare. That is the message that we should be repeating, loud and clear. Whatever happened in this unusual case is unlikely to have any wider application; certainly there is nothing that suggests the Court intends to widen the scope of section 41. Victims should not be scared to come forward on the basis of what is being said, loudly and inaccurately, by those who should know better.

The Secret Barrister is a junior barrister specialising in criminal law, @BarristerSecretwww.thesecretbarrister.com

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The UK press’s timid reaction to Brexit is in marked contrast to the satire unleashed on Trump

For the BBC, it seems, to question leaving the EU is to be unpatriotic.

Faced with arguably their biggest political-cum-constitutional ­crisis in half a century, the press on either side of the pond has reacted very differently. Confronting a president who, unlike many predecessors, does not merely covertly dislike the press but rages against its supposed mendacity as a purveyor of “fake news”, the fourth estate in the US has had a pretty successful first 150-odd days of the Trump era. The Washington Post has recovered its Watergate mojo – the bloodhound tenacity that brought down Richard Nixon. The Post’s investigations into links between the Kremlin and Donald Trump’s associates and appointees have yielded the scalp of the former security adviser Michael Flynn and led to Attorney General Jeff Sessions recusing himself from all inquiries into Trump-Russia contacts. Few imagine the story will end there.

Meanwhile, the New York Times has cast off its image as “the grey lady” and come out in sharper colours. Commenting on the James Comey memo in an editorial, the Times raised the possibility that Trump was trying to “obstruct justice”, and called on Washington lawmakers to “uphold the constitution”. Trump’s denunciations of the Times as “failing” have acted as commercial “rocket fuel” for the paper, according to its CEO, Mark Thompson: it gained an “astonishing” 308,000 net digital news subscriptions in the first quarter of 2017.

US-based broadcast organisations such as CNN and ABC, once considered slick or bland, have reacted to Trump’s bullying in forthright style. Political satire is thriving, led by Saturday Night Live, with its devastating impersonations of the president by Alec Baldwin and of his press secretary Sean Spicer by the brilliant Melissa McCarthy.

British press reaction to Brexit – an epic constitutional, political and economic mess-up that probably includes a mind-bogglingly destructive self-ejection from a single market and customs union that took decades to construct, a move pushed through by a far-right faction of the Tory party – has been much more muted. The situation is complicated by the cheerleading for Brexit by most of the British tabloids and the Daily Telegraph. There are stirrings of resistance, but even after an election in which Theresa May spectacularly failed to secure a mandate for her hard Brexit, there is a sense, though the criticism of her has been intense, of the media pussy-footing around a government in disarray – not properly interrogating those who still seem to promise that, in relation to Europe, we can have our cake and eat it.

This is especially the case with the BBC, a state broadcaster that proudly proclaims its independence from the government of the day, protected by the famous “arm’s-length” principle. In the case of Brexit, the BBC invoked its concept of “balance” to give equal airtime and weight to Leavers and Remainers. Fair enough, you might say, but according to the economist Simon Wren-Lewis, it ignored a “near-unanimous view among economists that Brexit would hurt the UK economy in the longer term”.

A similar view of “balance” in the past led the BBC to equate views of ­non-scientific climate contrarians, often linked to the fossil-fuel lobby, with those of leading climate scientists. Many BBC Remainer insiders still feel incensed by what they regard as BBC betrayal over Brexit. Although the referendum of 23 June 2016 said nothing about leaving the single market or the customs union, the Today presenter Justin Webb, in a recent interview with Stuart Rose, put it like this: “Staying in the single market, staying in the customs union – [Leave voters would say] you might as well not be leaving. That fundamental position is a matter of democracy.” For the BBC, it seems, to question Brexit is somehow to be unpatriotic.

You might think that an independent, pro-democratic press would question the attempted use of the arcane and archaic “royal prerogative” to enable the ­bypassing of parliament when it came to triggering Article 50, signalling the UK’s departure from the EU. But when the campaigner Gina Miller’s challenge to the government was upheld by the high court, the three ruling judges were attacked on the front page of the Daily Mail as “enemies of the people”. Thomas Jefferson wrote that he would rather have “newspapers without a government” than “a government without newspapers”. It’s a fair guess he wasn’t thinking of newspapers that would brand the judiciary as “enemies of the people”.

It does seem significant that the United States has a written constitution, encapsulating the separation and balance of powers, and explicitly designed by the Founding Fathers to protect the young republic against tyranny. When James Madison drafted the First Amendment he was clear that freedom of the press should be guaranteed to a much higher degree in the republic than it had been in the colonising power, where for centuries, after all, British monarchs and prime ministers have had no qualms about censoring an unruly media.

By contrast, the United Kingdom remains a hybrid of monarchy and democracy, with no explicit protection of press freedom other than the one provided by the common law. The national impulse to bend the knee before the sovereign, to obey and not question authority, remains strangely powerful in Britain, the land of Henry VIII as well as of George Orwell. That the United Kingdom has slipped 11 places in the World Press Freedom Index in the past four years, down to 40th, has rightly occasioned outrage. Yet, even more awkwardly, the United States is three places lower still, at 43rd. Freedom of the press may not be doing quite as well as we imagine in either country.

Harry Eyres is the author of Horace and Me: Life Lessons from an Ancient Poet (2013)

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder