The Secret Barrister has written an article based on their blog for the New Statesman,
www.newstatesman.com/politics/feminism/2016/10/why-ched-evans-verdict-does-not-set-dangerous-precedent
However, although it is repeated that this case is unusual, again, it is not explained why.
"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"
It would be really helpful if the unusual elements of this case that make section 41 so applicable could be pointed out. The victim had no memory of events, but the nature of rape is that it involves an act that may be consensual, (may have been consensual with the defendant in the past), and there will usually be no neutral third party witnesses. I can't see where any concerns about precedent are 'exploded'. "Oh but that was very unusual" is not, in itself, a winning argument.
The SB seems to understand the concern that on the face of it the new evidence doesn't meet "the high hurdle of relevance and similarity",
"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.but then says "
Why is it a difficult leap?
Concerns about the neutrality of witnesses are mentioned, but again we don't really know why we shouldn't be concerned.
"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."
I don't understand how this judgement wouldn't be referred to by future court of appeal judges when making a decision - they referred to the playground case. Again, maybe their reasoning isn't clear in the judgement, but would all parties have read all the transcripts of the playground case, or just the judgement summary? Even if the judges opinion on 'relevance and similarity' was a subjective judgement, once they have made it, doesn't that set a precedent for other cases?
I'm not trying to litigate this case on Twitter. I am trying to understand where rape victims stand. This case has highlighted plenty of reasons not to go through with a court case, but no arguments have been advanced to explain why defendants wouldn't be encouraged to use this defence strategy in other cases, so no, I still don't understand why this case doesn't set a precedent.