Ched Evans - Case goes to appeal

How about enquiring births, deaths & MARRIAGES for former spouses?

Not forgetting divorces can often be acymonious and people are prone to exaggerate.

 

Who mentioned anything about marriage? Would be a pretty short enquiry for a lot of the people the police deal with.

Your point about divorce is fine. That's why we have juries - they decide what weight to put on such things.

 

Good point though I guess if we had 'Meldepflicht' as I think we should it would make things much easier. Of course there are couples that don't live together but I guess that's not so many. They all have the chance to come forward after a conviction anyway.

 

I wonder who his co presenters are going to be on Top Gear

 

I wasn't referring to the law/points to prove etc, just the main aspects of the case. Granted, I have probably read no more than a couple of media articles on this and that was some time ago, so yes, I accept my knowledge of this case is a weak one.

Thanks for the overview. Even more interested to know what the defendant has 'instructed' his legal team to come up with.

 

CCRC said there is a very good chance it will be quashed so a virtual forgone conclusion IMO.

I guess the rest is all down to twitter.

 

They've said nothing of the sort.

 

Yes they have about aweek ago.

 

It was only announced 3 days ago. That aside here's their full statement:

http://www.ccrc.gov.uk/commission-refers-the-rape-conviction-of-ched-evans-to-the-court-of-appeal/

They've said there is a "real possibility" that the CoA may quash the conviction. It's a statutory test they have to apply in order to refer cases and prevents them sending any old garbage to the CoA. Note the word 'may'. It's not a commentary on their views of the case. Simply, it meets the threshold so they've sent it upwards as they must do.

FYI around 70% of cases the CCRC refer see a conviction quashed. A good success rate but it is not a 'virtual foregone conclusion' by any means.

 

real possibility = a good chance with an extra plus just because they said it IMO, they could have said nothing.

Between the lines that actually says is there is new, credible, and important evidence and with a 70+% hit rate the odds are now in Evans' favour.

 

The odds are certainly in his favour but you're wrong on the first bit. The words 'real possibility' appear in the law itself governing when the CCRC can send a case to the CoA so they certainly couldn't have said nothing. They have to demonstrate why they've sent the case for a fresh hearing in line with the law.

 

The CCRC has a very generous definition of "Quashed" which although technically correct would surprise most ordinary members of the public. Included in their definition of a quashed conviction would be: a reduction in sentence from 10 years to 6 years; the substitution of a lesser offence (such as murder to manslaughter or dangerous driving to careless driving); and when the Court of Appeal orders a retrial where the defendant could be re-convicted. Unfortunately, they don't break down the quashed convictions into categories. Another criticism of the CCRC is that it was originally set up to deal with potential serious miscarriages of justice but some of the referrals are for matters which are relatively trivial such as motoring offences, minor public order and lower level drug offences.

As such, although the 70% figure is the headline that the CCRC likes to publicise, it has little value as an indicator in this case as it encompasses several different types of appeal, some of which might have a considerably higher success rate than others.

You are completely right about the wording - the phrase "real possibility" appears in every single CCRC press release for cases referred to the Court of Appeal as that is the legal threshold for referral.

 

Interesting post SLB. You're right, it would be interesting to see how many get completely overturned.

 

informed debate? corbynmania baby!

 

So... the Sunday Mirror have reported on the alleged substance of Evans' investigators' work.

http://www.mirror.co.uk/sport/football/news/rapist-footballer-ched-evans-dossier-6611546

It basically seems to boil down to a several things:

• an attack on the lifestyle of the victim based on the views of a number of people;
• criticism of the summing up by the trial judge to the jury;
• a claim that the police didn't track down all of the CCTV and witnesses; and
• alleged procedural errors by the police.

My opinion is the report they've compiled (if the newspaper report is accurate) is very much like a desperate last stand and a PR effort to boot. They're throwing everything possible at the Crown's case although obviously we don't know which of these grounds the CCRC have accepted. For example his defence have previously appealed on the basis of the summing up by the trial judge being faulty, and attacking the memory loss evidence, and that was dismissed so that shouldn't be repeated this time around. Plus some of the things should have been raised at the time of the initial trial (eg. "he wasn't read his rights") and don't constitute genuine 'new evidence'. I'm left wondering if they have a smoking gun somewhere which they've not revealed at this point.

This revelation of the dossier is clearly a stage-managed attempt to ensure that whatever the outcome of this final appeal Evans has thrown doubt on the conviction by smearing nearly everyone involved in it happening. It's the fault of the victim, the fault of the police who attended, the fault of the police who investigated it, the fault of the Crown Court judge... Ironically I think the fact McDonald was acquitted seriously undermines Evans' attempts to clear himself. It demonstrates that the jury listened carefully to all of the evidence and made a nuanced decision to acquit one of them and convict the other. That will be a big hurdle to overcome in the Court of Appeal next year.

I'll watch with interest. If he succeeds there will be some influential new case law created.

 

In earlier posts elsewhere I said at the time the summing up had gaping holes and was surprised it never got him off at appeal. I have no doubt the resulting "nuanced" decision should never have been possible and for that I can only presume the Jury were poorly guided ... let's just say that if she was too drunk to give consent to one then she was also too drunk to give (even nuanced) consent to the other.

It's also funny how McDonald was never credited with the assist.

 

If he is innocent, then he has no option than to launch a "desperate last stand". I am sure anyone else would do the same.

The police, rather than the victim, decided it was rape. They did so with no supporting evidence it was rape from inside the hotel room. They should at least of fully investigated everything that happened elsewhere. Evans had no right to see or seize the CCTV camera footage, only the police could do that.

If the police then didn't read his rights to Evans that is a disgraceful omission. It is a technicality of the sort that in other circumstances can wrongly get guilty people off, and so it annoys me. But this wouldn't have occurred in the "heat of the moment" after a police chase, for example, it would have been done some time after as part of a calculated investigation. Not to give Evans a caution is horrendous error.

We (nor the jury) can ever be 100% certain what happened that night, as no one else was there. It would be awful if he did commit rape and got off, but it certainly seems an unsafe conviction to me.

 

You can say that but it's manifestly not true in law. Here's what the Court of Appeal said on that very point:

To be absolutely clear if Evans' wanted to appeal on this point he needed to take the case up to the Supreme Court. He has not done so.

 

Agreed.

She approached the police though didn't she? It is incumbent on them to decide then what, if anything, they're investigating rather than the victim. It's not like they can shut their ears and say "well she never said the r word so it can't be that".

I doubt there is any proof in existence around whether he was cautioned at time of arrest or not. It's an oft repeated claim by people under suspicion yet in my experience of police investigations it's now part of the script. If he neglected to mention this fact until now, and can't prove otherwise, it's a claim without merit.

 

They miss the point .... she was either too drunk or she was not too drunk to consent. What McDonald believed is neither here nor there and can only be viewed in mitigation.

The Judge should not have advised on separate decisions for what essentially could not be separated. At the very least he should have ordered a retrial as soon as different verdicts were announced.

 

With respect I don't think you understand the law in this area.

For example the bit in bold couldn't be more wrong. The law says if a suspect reasonably believes she consents he is not guilty of rape. The jury determine if the belief was reasonable based on the evidence. What he believed is crucial to proving the case either way.

 

She approached the Police to report her missing mobile not to report a rape ... they have basically investigated off their own backs after hearing the words "I can't remember" and "footballer"

 

Fine ... but she wasn't comatose when Evans climbed aboard but by all witness accounts, was very active. Why then is Evans not afforded the same consideration that consent was given or implied?

If McDonald didn't think she was too drunk why on earth would Evans think she was?

 

We will never know for sure as you would have to ask the jury. But the presumption is that they weighed up the evidence and decided that in coming across her in town at 4am, getting in a taxi together back to the same hotel and walking into the room with her McDonald was entitled to reasonably believe she was consenting to what followed. Meanwhile in procuring a room key by less than honest means, jumping aboard and then scarpering via the fire exit Evans clearly did not give a good impression to the jury of a man who reasonably believed she was consenting. That's ultimately what we asked thousands of juries each year to weigh up in cases across the land - the human factor.

It's certainly an interesting case to pick apart.

 

If there was a suspected crime, and he was a suspect, then he should not have been questioned at all until he was under interview conditions at the nick, which would start with a recorded caution. Even in my day. I used to send other uninvolved officers to make an arrest to try and be sure that there was no questioning in the transport to the station. Certainly at least two officers should always be present to corroborate the caution in an evolving investigation.

It pains me to to say it, but at the moment I tend to agree with Godfather. The victim didn't go and report a rape, just loss of her phone. I believe the police officers saw the possible rape situation, then the opportunity to make a high profile arrest and took it, and then didn't investigate fully (somewhat blinkered).

 

I dare say it's not the first time a footballer has let himself into his mates "party" with a view to joining in (if she's up for it). I wouldn't be shocked whatsoever, it's not my style but I certainly don't see it as a crime. And of course his teammates were on the fire escape, he wasn't scarpering but joining them to have a giggle.

However I think all this is superfluous to the charge, it may make him a cad but she wasn't a victim IMO.

 

The question has to be asked though why didn't Evans or his legal team raise any of these points at the time of the Crown Court trial? He must have hired some right clowns to represent him first time around as these are fundamentals frankly. Did McDonald's lawyers forget too?

I also wonder if North Wales Police are independently contacting the witnesses Evans' investigators have obtained statements from? It seems slightly odd that a multi-millionaire bankrolls a private investigation and all of a sudden 14 people are forthcoming with evidence and prepared to give statements when they were invisible previously.

 

Complacency or maybe the prosecution were just better at convincing the jury. Like it or not the media may well have had them decided already.

 

It's a central part of our jury system that they are instructed not to read or watch any media about the case during the trial. We can speculate all day long as to how often that's ignored and happens anyway. We don't lock juries away and isolate them like they have done in America of course, although we do convict and severely punish those who are proven to have ignored the instruction. And frankly with 12 in a room there will always be 1 likely to tell the judge if they see another breaking the rules.

Pre-trial there will have been very little media other than a reporting of the fact he was charged. Again, if there had been anything severely prejudicial it would have been raised by his defence team by now.

 

Are you suggesting that the witnesses have been bought? Bit of a risky strategy, 14 potential witnesses to Perverting the Cause Of Justice.

It wouldn't surprise me if the initial defence team didn't seriously consider he would be found guilty based on the lack of evidence of what actually happened in the hotel room. Maybe they were complacent - and as we know, there is a lot of "social pressure" to NOT speak out on behalf of a potential rapist, when just keeping quiet is an easier option.

 

That always makes me laugh. It is similar to when a judge in court tells a jury to ignore something that was just said in court. It is basically impossible.

 

I'm suggesting I would be looking at how they came to the attention of the investigators is all. I'm sure the Court of Appeal will weigh that up as part of the mix.

There was lots of evidence about what happened in the hotel room. Very little of it is independent evidence of course but then hey, that's the reality of the criminal justice system we have. Particularly when the law looks to criminalise behaviour which almost always happens in private. In fact the majority of the independent evidence should support Evans. For example there's the hotel porter who stood outside the room after Evans had blagged the key from him and heard what he considered to be loud consensual sex and nothing untoward or concerning.

 

Just to clarify a couple of points for people on here:

1. The comment that the victim wasn't "comatose" has been made several times. The Court of Appeal specifically considered the relationship between drunkenness and consent in the case of R v Bree (2007). Amongst other things, they ruled that the capacity to give consent can disappear well before unconsciousness. In these types of case, the victim does not need to be comatose for rape to occur.

2. The judge's summing up is not the reason for the referral to the Court of Appeal, despite the concerns of some of the amateur lawyers on here. The CCRC explain why they are referring cases, if it had been down to a potential misdirection by the judge, they would have said so. It's quite incredible that some people on here think that they understand criminal law better than a Crown Court judge, three judges in the Court of Appeal and now the CCRC. I also wonder whether the people who have expressed their concern about the judge's summing up have actually read it? I can't find it on the internet - surely you wouldn't have concerns about it if you haven't actually read it?

3. Newspapers are very restricted in what they report before and during a trial - they are not allowed to give opinion or comment, merely report the facts. After Evans' conviction, there were numerous comment pieces debating the case but this type of article will not appear in the media before the conclusion of a trial. Social media is a completely different beast as it is impossible to control but the press won't have had any influence on the jury whatsoever, they are only reporting what has been said inside the court.

 

That's not the argument though ... How could McDonald have reasonable belief that she was sober enough to consent and Evans not?

The Judge may not have improperly handled it but the jury reached what should have been an impossible decision. It matters little what you say about us amateur judges when common sense has not been applied by the jury which it clearly hasn't when you consider the above point.

The Newspapers splashed it over their headlines and although they didn't say much, they did nothing to dispel speculation and opinion was published in several of them. Also I did notice the mail's readers comment section wasn't disabled initially. 'Media Witchhunt' isn't a term I bandy about frequently but that's how it looked to me.

 

Thats right, and the more headlines splashed, the more some Jury members will be tempted to search the social media for reaction.