Retrial by media
By
How can the public understand Ched Evans' not guilty verdict when lawyers are retrying the defence's case in the press, asks John van der Luit-Drummond
On 14 October 2016, following a two-week retrial, footballer Ched Evans was found not guilty of rape. The Wales international footballer had been arrested in May 2011 and found guilty of rape in April 2012. What followed was a lengthy, and at times ugly, legal battle to clear his name.
While the verdict brought relief to Evans and his family, it has destroyed the life of his accuser, who, having changed her identity twice following a wave of online abuse, has reportedly left the UK to start a new life in Australia. It has also picked at festering scab: how those accused of rape and sexual assault, and their alleged victims, are treated by both the criminal justice system and national media.
In the hours and days since the verdict, the public has been bombarded with details and commentary on the case. Some of it has been confusing, uninformed, and damaging to the justice system. Among the many column inches written, the Daily Mail reported on the 'disturbing precedent' set by allowing lawyers to delve into the sexual past of Evans' accuser, while, in a separate article, women's rights activist Julie Bindel claimed the acquittal amounted to a 'rapists' charter' and that she would advise victims to think twice before going to court.
Meanwhile, the Guardian's Sandra Laville said rape complainants are still being 'put in the dock', despite section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibiting a complainant being asked about their sex life. An editorial in the paper has since argued that 'everything about this case stinks' and the law should be reconsidered. Adding its voice to the debate, the Independent also took aim at how rape trials are conducted, saying: 'When justice is done, it should not be done like this.'
What was needed were some cool, calm heads to provide clarity to proceedings: enter the lawyers, who you might have expected to all be in agreement on the merits of Evans' defence. Yet lawyers rarely reach a consensus on matters of law '“ a hazard of the job. And so it has been the case of late. The topic of debate: section 41.
The Secret Barrister's '10 myths about the Ched Evans case debunked' post '“ which was later picked up by both iNews and The Sun '“ did much to pick apart the misconceptions surrounding the verdict. The Solicitors Journal columnist followed this up with a piece in the New Statesmen, explaining how use of the limited exceptions to section 41 did not 'set a dangerous precedent'.
Writing in the Guardian, Vera Baird QC said the courts should not be allowed to judge rape by sexual history. The former solicitor general had earlier told the BBC's Today programme that the Evans decision had 'set us back 30 years'. However, her opinion was given short shrift by Solicitors Journal contributor John Cooper QC, who told the programme that 21st-century juries 'understand that allegations of rape need to be properly tested' and would apply 'modern, proper standards' to their deliberations.
The two heavyweights of the Bar continued their joust in an issue of The Brief, with the 25 Bedford Row silk arguing that, while the morals of the case may be up for discussion elsewhere, 'as for the law, it got it right'. However, Baird, the Northumbria police and crime commissioner, said there was 'a danger that defendants claiming consent will pursue the Evans defence', reinforcing the 'twin myths' of 'she's a tart and you can't believe a word she says'.
Barrister Matthew Scott, writing in The Telegraph, also disagreed with Baird's assertions by stating that rape suspects have a right to challenge their accusers, and to suggest otherwise would be 'profoundly irresponsible'. Both the chair and vice-chair of the Criminal Bar Association also entered the fray, with Francis FitzGibbon QC and Angela Rafferty QC arguing that Baird's talk of regression to the bad old days did a 'disservice to victims of sex offenders', was 'counterproductive', and would be 'more likely to scare people off than the law itself' '“ in essence, a self-fulfilling prophesy.
Yet, on Talk Radio, human rights barrister Charlotte Proudman was left dismayed by both Julia Hartley-Brewer's 'slut-shaming' and 'the level criminal barristers will go to discredit a woman's credibility on the basis that she'd had previous sexual relationships'.
If some of our best-known advocates and legal commentators can't reach a consensus on the law of the land, how can the public be expected to understand, and more importantly, accept it so that faith in the justice system is maintained? Is this case one of those rare exceptions where '“ despite the obvious need for greater transparency and understanding of the law '“ the less said, the better?
If the Evans verdict was not enough controversy for lawyers to mull over, The Times has reported that Alison Saunders, the director of public prosecutions, is in agreement with Sir Cliff Richard over his call to give anonymity to rape and sex abuse suspects before they are charged. No doubt members of the profession will be using Fleet Street's digital pages to hash out their contrasting views on this story too. But at the end of it, will the public be any better informed, or even more confused?
John van der Luit-Drummond is deputy editor at Solicitors Journal