Top Barristers Discuss Ched Evans Case

Leading criminal barristers have come forward to express their concern that the ‘over-reaction’ of some women’s rights campaigners following the Ched Evans verdict will ‘scare’ victims of sexual assault from speaking up.

Section 41 & New Evidence

Evans, a Welsh international footballer, was convicted of raping a nineteen year old woman in 2011. He served half of a five year sentence and after his release a campaign was launched to find new evidence that would eventually led to his acquittal. The court of appeal then ordered a retrial, in which the new evidence – testimony from two of the complainant’s former partners regarding her sexual history – would be heard.

In court, the two new witnesses gave evidence that the complainants past sexual behaviour with them, including the language that she used, was very similar to the account that Evans gave describing how she had acted with him during consensual sex.

At the centre of the appeal was section 41 of the Youth Justice and Criminal Evidence Act 1999. This section of the Act stops a complainant’s sexual history being used in court apart from in exceptional circumstances.

“Created a rapists’ charter”

A number of women’s rights campaigners have suggested that this decision, to allow the defence to use the complainant’s sexual history, has set the law back thirty years and created a ‘rapists’ charter’.

Women’s rights activist Julie Bindel said following Evans’ acquittal last week:

“The Ched Evans acquittal, and the way his defence was run, has led to a rapists’ charter.”

While Vera Baird, a former solicitor general for England and Wales and now the Northumbria police and crime commissioner, claimed the decision has pushed the law back by three decades.

“Counterproductive”

However in a recent article in the Guardian, the chair and chair of the Criminal Bar Association have expressed their concern that this view is ‘counterproductive’ and will undermine the confidence victims of sexual crimes have in the laws that are in place to protect them.

Chair of the Criminal Bar Association, Francis FitsGibbon QC, said:

“There’s been a huge over-reaction to what this case means. The answer is not very much. The thing that troubles me is people saying it sets the law back 30 years and it’s a rapists’ charter. That is what is going to make people think they daren’t report what’s happened to them. Those cries of anguish are a self-fulfilling prophesy.”

He added:

“The law on section 41 makes it very, very difficult to introduce evidence of someone’s previous sexual behaviour unless the judge is persuaded it would result in an unfair verdict if it wasn’t put.

“There’s an understandable emotional reaction when something like this happens. When you step back and look at what it actually does it’s an over-reaction.”

On Baird’s stance, FitzGibbon went on to say:

“Vera has for many years been a redoubtable champion of women’s rights and I’m sure she genuinely believes this a backward step for the rights of women in the criminal justice system and in society. But I happen to disagree with her. I don’t think it is. I think the language that she and others have used is counterproductive and is probably more likely to scare people off than the law itself.”

“Highlights important issues”

Vice-chair of the Criminal Bar Association and an expert on the law around sexual offences, Angela Rafferty QC, said:

“Sometimes cases involving celebrities can be a blessing in highlighting important issues.”

But she added:

“It is a disservice to victims of sex offenders to misinform them that the Ched Evans case has put the law back 30 years or has made it a rapists’ charter. That case has not changed the law. The law forbids questions about the previous sexual behaviour of a complainant in sexual offence cases, except in highly unusual circumstances where the trial would be unfair, and a wrongful conviction might result, if the evidence was not given.

“The court of appeal thought Evans’s was such a case. Cases like Evans’s will remain wholly exceptional. There is no relaxation of the rule against this type of questioning.”

Sexual Abuse – Expert Advice

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Source: Guardian; Legal Cheek