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Ched Evans Cleared - I Still Believe Her

560 replies

ChampagneCommunist · 14/10/2016 14:45

Just seen this in the BBC website. His poor, poor victim

OP posts:
Datun · 18/10/2016 13:48

I'm missing something here:

No 61 'Statements confirm that the witness Mr Owens was not known to the defence at the time of the trial'.

No 23 In 2013 - 'Owens stated that he had been acquainted with the appellant (CE) for 7 or 8 years.'

Eh?

Datun · 18/10/2016 13:49

Oh, I think that means the 'defence team', not CE.

Ignore me.

prh47bridge · 18/10/2016 13:54

It seems to me that the appeal court was hell-bent on justifying why they invoked Section 41

Any Court of Appeal judgement justifies why they arrived at the decision they did. That's what judgements do. It does not mean they were hell-bent on allowing the defence to use the new evidence regardless of all other considerations. Indeed, the history of the Court of Appeal suggests their preference is to find reasons to reject new evidence.

the new detail bears all the hallmarks of witnesses being fed information

There is the possibility that the witnesses may be more partial than they cared to admit

These were arguments made by the prosecution, NOT comments by the Court of Appeal. The Court of Appeal considered these points and said the "cross examination did nothing to undermine [the witnesses] integrity".

As to whether the evidence is credible - we must put that to one side

Let's try the correct quote, shall we? "For the purpose of deciding whether or not the evidence is capable of belief, we consider we must put to one side the material that has emerged as to the extent to which the detail of the appellant's account has been made public". That is normal jurisprudence. Once the Court was made aware of the extent to which CE's account was in the public domain they gave both sides the chance to make submissions on the point. Neither side did so. It was open to the prosecution to invite the Court to draw a conclusion based on the new information but they chose not to do so. That means the Court has to ignore that information.

Remember that the Court of Appeal was NOT determining whether or not the evidence given by the witnesses was true, merely whether it was sufficiently credible and relevant to allow a jury to hear it. It was up to the jury to decide how much weight to give this evidence.

How did the appeal judges not say this is absurd

That was not the similarity being adduced. It is easy to take one or two points of similarity and say it is not enough. The Court of Appeal itself makes the point that none of the points of similarity is enough on its own. It is the cumulative effect. And no, the conviction was absolutely not quashed because the victim had a history of going with strangers and having sex. It was quashed because the prosecution failed to prove its case beyond reasonable doubt.

but the circumstances of their statements - timing, links to family -and friends were completely coincidental

The Court of Appeal considered the timing. As they point out, at each stage the witnesses answered the questions they were asked. As for the links to family and friends, in a town the size of Rhyl almost everyone will either know Evans or know someone who knows him. Similarly they will either know the victim or know someone who knows her. Indeed, we see that with Tristin Owens - he has a friend who knows Evans and his mother is a close friend of the victim's mother. The Court of Appeal considered all of this and decided that the witnesses were sufficiently credible under examination on the witness stand to suggest that their evidence was capable of belief.

I don't know whether the bar has been lowered or whether it was never really there in the first place

There is a bar. Looking at the previous judgements cited by the Court of Appeal I do not believe it has been lowered although I understand the concern of those who think it has been.

For what it is worth, I believe this case happened because Alison Saunders, the Director of Public Prosecutions, wants to change the law on rape when the alleged victim is intoxicated. She has instructed the CPS that a man must be charged with rape unless he can prove that the woman consented and that she was not too drunk to consent - a stance that goes well beyond the law and which is likely to result in more failed prosecutions. Whilst that instruction was not in place at the time of the initial prosecution in this case I suspect her attitude towards such matters may have informed the prosecution.

The leading case on consent whilst intoxicated is R v Bree which went to the Court of Appeal in 2007. In that case the accused had gone out drinking with a number of others, including the victim. A large amount of alcohol was consumed. The victim's recollection of subsequent events is patchy. She does not remember returning to her flat with the accused but accepts that she did so voluntarily. She remembers vomiting. She also remembers having sex with the accused but does not remember whether or not she consented at any point. The prosecution in this case initially argued that the victim was unconscious during sex but withdrew that allegation as there was no evidence to support it and the victim's own evidence tended to undermine that position. The jury convicted the accused. However, on appeal the judge's summing up was criticised on a number of points, not least of which was failing to make it clear to the jury that drunken consent is still consent. The Court of Appeal considered the evidence held that the victim in the Bree case was not too drunk to consent and upheld the appeal.

The descriptions of the Bree case suggest that the victim in that case was at least as drunk as the victim in this case, possibly more so. It was, therefore, always a stretch for the prosecution to argue that she was too drunk to consent. Indeed, the Court of Appeal when Evans initially appealed was of the view that the jury had convicted on different grounds, not least because it was difficult to justify acquitting McDonald if the victim was too drunk to consent.

It was also a problem for the prosecution that, to quote the Court of Appeal, the victim "did not allege she had been raped; to this day she has not alleged that she was raped or that she was incapable of consenting to intercourse".

So we have a victim who does not say that she was incapable of consent, who does not know whether or not she consented and does not say she was raped.

I am not saying Evans is innocent. I don't know what really happened in that hotel room. However, the question is whether the prosecution proved its case beyond reasonable doubt. Evans does not have to prove his innocence (although some posters on here clearly think he should). The prosecution have to prove his guilt.

Marbleheadjohnson · 18/10/2016 13:58

pr4h7 . "And no, the conviction was absolutely not quashed because the victim had a history of going with strangers and having sex."

No I know that, but I wasn't saying that was the reason behind the appeal decision, I was saying that's what some people conclude - someone said it on another thread here, no less, until it was pointed out to her that neither witness was a stranger.

alreadytaken · 18/10/2016 14:03

"His mother, who was able to partly confirm his evidence, is a close friend of the victim's mother."

  1. The victims mother is dead, I'm not sure exactly when she died.
  1. The mother could only confirm that the victim had sent the night in her home, not whether sex had taken place and certainly not what was said. Therefore on all important details his evidence is not supported.
  1. There seems to be an attempt to minimise the extent to which Owens actually knew Ched.
Datun · 18/10/2016 14:10

prh47bridge I realise it was the prosecution's job to undermine the witness's integrity. I realise the witnesses apparently stood up under cross-examination. I realise they didn't let the jury know the full extent of how much of CE's account was in the public domain.

From the details in the document, despite the prosecution having huge doubts about the credibility of the witness, it is my opinion that they did a woeful job of it.

I don't understand the finer points of law, at all. And I think, from what you have written, you do. Do you think they did a good job ?

Marbleheadjohnson · 18/10/2016 14:13

Wasn't the "legal argument" outside of the jury's view the prosecution trying to say the witnesses could not possibly be credible? They apparently weren't allowed to press too much on the "flavour of a bribe" thing because the judge decided it wasn't really relevant for the jury to hear.

Like Datun, I don't know the finer points of law. I just know as a rape victim, this does not fill me with confidence at all and makes me glad I didn't report.

Datun · 18/10/2016 14:19

And Tristin Owens had been friends with CE for 8 years. Not friends of friends. Actual buddies.

Datun · 18/10/2016 14:20

Marbleheadjohnson
Flowers

alreadytaken · 18/10/2016 15:02

" As for the links to family and friends, in a town the size of Rhyl almost everyone will either know Evans or know someone who knows him. Similarly they will either know the victim or know someone who knows her"

Indeed. Hence Ched and his friends/ family were easily able to find people who would be seen as credible witnesses.

The idea that in a town like Rhyl the witnesses had not heard of the reward being offered is risible. Likewise the idea that they had not heard the full details of Ched's defence before they gave their expanded evidence is risible. Since it involved locals it would have been the talk of a small town for months.

It is also quite likely that both witnesses knew those prosecuted for naming the victim..

alreadytaken · 18/10/2016 15:13

Also when one considers the extent to which Owens evidence was supported by his mother - his statement was that he lied to her about having sexual intercourse with the victim. So his mother could hardly support anything he said about sex. Of course he wasnt under oath to his mother.

11122aa · 18/10/2016 15:29

The guys who gave evidence of their time with the girl are also protected by anomailty. They havent been named in any press reports as far as i know.

Marbleheadjohnson · 18/10/2016 15:40

They're named in the appeal document. They aren't protected by law, they weren't named in the trial "for legal reasons" as it meant that she could have been identified. Just like someone accused of abusing a child might not be named, not to protect them, but to protect their siblings, for example.

I didn't consider this though - if they are named in the appeal document which is public, does that mean they can be named now? She is just referred to as X. If they still shouldn't be named, do we need to report our posts?

Marbleheadjohnson · 18/10/2016 15:41

I've reported my last post to ask if this is a problem

WomanWithAltitude · 18/10/2016 15:46

If their name is in the appeal doc then it is already in the public domain.

11122aa · 18/10/2016 15:49

Could be an oversight, judges have sometimes released names they shouldn't have.

Marbleheadjohnson · 18/10/2016 15:50

Thanks for bringing that up 11122aa. Hopefully MN will confirm...

venusinscorpio · 18/10/2016 15:54

I can't believe they would be able to publish the names at all if they had anonymity. They are mentioned many times in the judgement which as Woman says is in the public domain.

Datun · 18/10/2016 16:06

The PDF I read came from 'Crimeline'. I've just had a check. They provide :

'...speedy, accurate and relevant legal updates'. Presumably for the legal profession. It's headed up by a barrister. Looks kosher to me.

prh47bridge · 18/10/2016 16:11

Re Owens mother, I did only say that it was partially confirmed. No, she clearly could not confirm the details. Similarly the text messages only partially confirmed the accounts of the witnesses. So we can be pretty sure that encounters with the victim took place but the only evidence for the detail is their statements. Some people seem to think that their evidence is entirely made up and they did not have any encounters with the victim. The jury may have found it telling that the victim did not deny the accounts of these witnesses.

Wasn't the "legal argument" outside of the jury's view the prosecution trying to say the witnesses could not possibly be credible

The jury would not be allowed to hear legal argument as to whether or not the witnesses should give evidence. The prosecution is, however, allowed to challenge the credibility of witnesses vigorously.

Do you think they did a good job

Without having seen all the evidence I hesitate to offer an opinion. However, having said that, my view is that the "too intoxicated to consent" argument was always very risky. They might have got further with an argument that she did not consent but for that they really needed McDonald's statement and they could only introduce that if either the defence agreed or McDonald was available for cross examination. Even then, the defence may have been able to persuade the jury that, since both McDonald and Evans agree that the victim was asked and gave her consent, the fact they disagree about which of them did the asking is just a failure of recollection and does not mean the question was not asked.

If I was a criminal prosecutor (not my specialism) and was asked to prosecute a case where the victim could not recall what happened, did not think she was unconscious, did not know whether or not she consented and did not think she was too drunk to consent, my response would be that I would give it my best shot but I would expect to lose. Indeed, I would question why we were putting the victim through the ordeal of a trial and all the possible repercussions given her evidence. Equally, if I was defending such a case I would be as confident of success as Evans' lawyers seem to have been.

It looks to me like this was a very weak case. The prosecution appear to have thought so too as they repeatedly made assertions for which there was no evidence. If you believe you have a strong case there is no need to do that (although some prosecutors do it anyway).

The case being weak does not, of course, mean Evans was innocent.

ageingrunner · 18/10/2016 16:26

He was convicted originally because he described what he had done though wasn't he prh47bridge? And was surprised when it was revealed to him that he was therefore a rapist? He's so dim and such an arse that he thought his behaviour was A ok 👌🏻

Datun · 18/10/2016 16:30

prh47bridge

In your opinion, why did the prosecution not make more out of the friendship between the witness and the accused?

And why do you think there is such a disconnect between the prosecution thinking they had a weak case and the general public (including us mumsnetters), etc who think it's a strong case.

I'm not particularly swayed by the fact that I think he is a lowlife, but from the facts I have read.

ageingrunner · 18/10/2016 16:31

This is what I don't get. He was convicted because he confessed to rape. How did he even have grounds for appeal in the first place?

Datun · 18/10/2016 16:32

It looks to me like this was a very weak case. The prosecution appear to have thought so too as they repeatedly made assertions for which there was no evidence.

This bit I mean. And thanks for your input btw !

venusinscorpio · 18/10/2016 16:37

Weak case or not, the first jury found CE guilty, and the first application to appeal was rejected. It's only now with this "fresh evidence" that a different view is taken.

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