prh, do you think the concern that these "cumulatively remarkable similarities" only coming up very late in the day and after all other avenues of defence had been exhausted, and after the information that needed corroborating was already in the public domain, is a valid one?
Yes.
The jury heard the new witnesses and heard everything the prosecution could throw at them to cast doubt on their testimony. They decided that the evidence from these witnesses was sufficiently credible to cast reasonable doubt on Evans' guilt (which is not the same as saying they believed the new witnesses were telling the truth). As I did not hear all the evidence my instinct is to accept the jury's view. However, I accept that the jury may have got it wrong and it is a valid concern.
I don't want to doubt your expertise but was that it?
Not a question of expertise at all. That is all I can see mentioned in the judgement. I do not consider myself remotely qualified to judge whether they are enough cumulatively to justify the Court's decision and I certainly don't know if there were any other points of similarity that aren't mentioned in the judgement. All I can say is that, in my limited experience, none of my (few) sexual partners would match more than 2 or 3 of the items on this list. However, I am not drawing any conclusions from that. My sexual partners are a vanishingly small sample of the female population. It may say more about my experience of sex than it does about the world generally. How many people would match all of them? I simply don't know. Would I have arrived at the same judgement as the Court of Appeal if I had heard all the evidence and arguments they heard? No idea.
It is, perhaps, worth noting that, based on the House of Lords judgement, the Courts are not looking for something that is unique, i.e. that the behaviour is something only exhibited by the victim. The question is rather, if you stated these things about a random woman with whom you had never had consensual sex, how likely is it that they would all be correct - not individual items but the whole set? The courts have not set a specific standard for that. Is it enough if the behaviour in total is something that is shared by 40% of women? 20%? 1%? Less? There is no clear yardstick (not that we could be sure of whether that measure had been met).
It is also worth pointing out, from the House of Lords judgement, "the test of admissibility is whether the evidence (and questioning related to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under Article 6 of the [ECHR]". That is about protecting the right of the defendant to a fair trial, which strongly suggests a lower bar than would be the case if we were not protecting that right. Our whole criminal justice system is built on a presumption of innocence, so the courts are very hesitant about excluding evidence that could be relevant to the defence.
but how is telling somebody what you would like uncommon
On its own that would not have been enough. In the Court of Appeal's view it becomes enough when combined with the specifics of what was requested plus the other factors.
It is not just a specific legal term, it has a clearly understood meaning
If I recollect correctly this particular discussion started with someone asking me why I believe this case does not set a new legal precedent, so that's what I have been trying to explain. I agree that some people will believe that they can get around section 41 if they can find a few similarities with consensual sex partners the victim might have had. I believe the courts should hold the line so that they find it is no easier than it was previously but it certainly won't stop some from trying.