Ched Evans

[JCL - the new kid in town]

Surely this is why McDonald was acquitted and Evans found guilty. The jury believed consent may have been given because McDonald met the woman outside of the hotel and therefore McDonald could argue consent was being given. However, the jury did not accept consent had been given in the case of Evans whose arrival much later and having not met the woman outside of the hotel room bought into question whether Evans could reasonably argue that he was proceeding with consent.

I believe that in California they are examining a change in law that would mean that before sex adults would have to ensure they had prior consent.

one thing i wonder is how long were both men in the room together as i read somewhere Evans arrived and McDonald left and if so could the victim have been not completely aware the person had changed?

 

[Scunner]

Surely this is why McDonald was acquitted and Evans found guilty. The jury believed consent may have been given because McDonald met the woman outside of the hotel and therefore McDonald could argue consent was being given. However, the jury did not accept consent had been given in the case of Evans whose arrival much later and having not met the woman outside of the hotel room bought into question whether Evans could reasonably argue that he was proceeding with consent.

I believe that in California they are examining a change in law that would mean that before sex adults would have to ensure they had prior consent.

I understand that, but, and here's the big but, in order to create a scenario whereby the jury can determine this to be the case they must first agree that even if the girl gave consent she couldn't have meant it or lacked the capacity to mean it for Evans, but did for Macdonald. I am uncertain about this...that's all.

 

[Scunner]

one thing i wonder is how long were both men in the room together as i read somewhere Evans arrived and McDonald left and if so could the victim have been not completely aware the person had changed?

As far as I can tell Macdonald and Evans left simultaneously by separate exits. Macdonald was present in the room when the girl asked Evans to give her oral sex and supported this. But this isn't the legal argument. The legal argument is that even if she did say that, she lacked the mental capacity to do so.

Now, if you examine the fact that there was no alcohol present in her blood test the following day, and the level to which she was intoxicated is hypothetical - this is all in the court summary - then you have an issue.

 

[JCL - the new kid in town]

As far as I can tell Macdonald and Evans left simultaneously by separate exits. Macdonald was present in the room when the girl asked Evans to give her oral sex and supported this. But this isn't the legal argument. The legal argument is that even if she did say that, she lacked the mental capacity to do so.

Now, if you examine the fact that there was no alcohol present in her blood test the following day, and the level to which she was intoxicated is hypothetical - this is all in the court summary - then you have an issue.

ok fair enough i thought mcdonald left when evans arrived, my mistake.

alcohol is processed differently by different people but on average the body processes a unit an hour and so if the blood test was done 12 hours after drinking eg midday the next day then 12 units could have been removed. However someone who drinks regularly and someone in good health and young will process it generally a lot faster. Also women feel the effects of alcohol more than men due to a lower percentage of their body being water and so its diluted less.

 

[JCL - the new kid in town]

I understand that, but, and here's the big but, in order to create a scenario whereby the jury can determine this to be the case they must first agree that even if the girl gave consent she couldn't have meant it or lacked the capacity to mean it for Evans, but did for Macdonald. I am uncertain about this...that's all.

because she went back to the hotel with McDonald and so that shows a measure of intent whereas evans turned up in the middle of the night uninvited

 

[beorhthelm]

In his online article, Mr Gilhooly wrote: "This crime, as alleged, was at the bottom end. There was no violence and thankfully the victim has no recollection of it.

sooo, according to Mr Gilhooly, date rape with rohypnol is ok. so long as you dont slap them about or leave a mark. think the PFAI needs to have some new legal representation.

i'd also offer this test for Gilhooly: if it happened to you would it be OK with it?

 

[Nathan]

sooo, according to Mr Gilhooly, date rape with rohypnol is ok. so long as you dont slap them about or leave a mark. think the PFAI needs to have some new legal representation.

i'd also offer this test for Gilhooly: if it happened to you would it be OK with it?

Yes its outrageous that he came out with that statement.

 

[Frampler]

I have taken an interest in this case recently, but I thought that I would appraise myself of as much impartial knowledge as I could.

I think that the feeling within the Justice system on this particular case go beyond the material facts of the acts of both the complainant and the accused on the night.

It is without question that there exists 'lurking doubt' in this case - R v Cooper (1969) - to my mind, and it is for that reason and that reason alone that the Lord Chief Justice 'LCJ' Mr Justice Mitting and Mr Justice Griffith Williams denied leave to appeal on 6th November 2012.

My rationale is that the evidence presented does not pass the necessary criminal conviction test of 'beyond reasonable doubt'. It may well be that that were this case presented to a civil court where the test is 'on the balance of probabilities' the jury would find in the complainant's (girl's) favour. However this is a criminal case and the former should apply.

Emotion doesn't come into this. Too many people on this thread have been emotional about it. The psychological effect on the victim, or the victim's state of mind moving forward and terms like 'justice for rape victims' are irrelevant. The only time a criminal court assesses these matters is during sentencing, not during the trial itself.

The only fact that matters is 'did Ched Evans penetrate the complainant with her consent or not?'. My analysis of the grounds to refuse appeal - the pdf of which from the Royal Courts of Justice is easily found on the internet - by the Lord Chief Justice leaves me uncertain because of one or two facts. These centre around the direction the trial Judge gave the Jury. In his summing up he did not use the phrase 'drunken consent is still consent' and the LCJ did not think that this omission by the Judge in his summing up was enough ground to appeal because they thought he had adequately covered this problem in his direction to the Jury.

I disagree after reading the summing up as it is ambiguous and could be seen as illogical when applied to the acquitted defendant Macdonald. It makes the case a matter of opinion and I think that as a result the LCJ really does not want this to go to appeal because Evans will be acquitted.

I think that Ched Evans, on the balance of probability, did have unlawful sexual intercourse with the complainant. I think that the LCJ thinks that too and he understands that there would be a public outcry if Evans were acquitted. It will also have a deep and lasting impact on criminal precedent, and this is where it goes somewhat deeper.

The upshot of an Evans acquittal may have repercussions on the way drunken or intoxicated rape is interpreted in law. This is because the case is both high profile and highly nuanced in its interpretation. It may even lead to a review about the way rape is defined in circumstances where alcohol is involved and it would certainly put off hundreds of women that are raped every year from coming forward.

From a legal perspective it is very interesting, and I expect that there is more to this than meets the eye and Evans will certainly have highly powered legal teams behind him as they will see the weakness inherent in the verdict and go for it unreservedly.

Like I said, this isn't about emotional judgement or even what I think, it is about fact alone. And on this basis I think the conviction is unsafe because even a cursory examination of the evidence means that no one could be certain ‘beyond reasonable doubt’.

Remember that the leave to appeal ruling and denial (there has only been one as far as I can tell) does not make a judgement on the case itself or the decision of the jury, simply whether there were any procedural inconsistencies that give ground to appeal or compelling new evidence. So the denial of the leave to appeal is not necessarily a validation of the jury’s decision.

It is now with the Criminal Case Review Commission, not the LCJ, to assess and the outcome will be hotly anticipated both here and in the Inns of Court.

There's quite a few misapprehensions about the law in your post. The rejection of leave to appeal means that the Court of Appeal did not consider that there were any arguable grounds to overturn the conviction. You might not be of the view that the evidence satisfied the test of reasonable doubt, but the jury was, and it is the jury's view of the evidence which counts. The appeal judges were satisfied that the judge's directions to the jury were valid, and that there was sufficient evidence to support the conviction. Given this, Evans' chances of success before the Criminal Cases Review Commission are very slim. Even if he were to succeed, the CCRC can only refer the case to a court, it cannot acquit him itself.

It's also pretty ridiculous, potentially slanderous even, to suggest that the LCJ was swayed by the public outcry that would result if Evans were acquitted, and tailored his decision accordingly. The appeal was rejected because it was a weak appeal - challenging the findings of fact rather than identifying an error of law.

 

[Scunner]

because she went back to the hotel with McDonald and so that shows a measure of intent whereas evans turned up in the middle of the night uninvited

It's a circular argument, if she lacked capacity then that lack must follow through all of her actions including going back to the hotel with Macdonald.

I've already said I believe he was probably wrong, the point is there is a level of doubt here that, to me, indicates that the 99% certainty required for 'beyond reasonable doubt' would fail in the Appeal Court. Remember that the Appeal court hasn't even seen the case yet, and I think this is political under greater good thinking.

 

[Hamilton]

I understand that, but, and here's the big but, in order to create a scenario whereby the jury can determine this to be the case they must first agree that even if the girl gave consent she couldn't have meant it or lacked the capacity to mean it for Evans, but did for Macdonald. I am uncertain about this...that's all.

I agree that this is the tough one to tackle. I would say that in the jury's view, in meeting with McDonald in a public place and then deciding to go to a hotel room that they could say that there is reasonable doubt as to whether consent was or was not being given. However, in the case of Evans, who had not met the girl outside of the hotel room and who had been called to the room by McDonald via a text message, then there was no reasonable doubt that consent was not given. The girl had not voluntarily gone to that room with Evans.

Of course, in threads like this we are always debating single pieces of evidence (the video in hotel lobby; the testimony of the night porter; the video in the kebab shop etc.) and as you know (probably better than any of us by the way you write) it's this bigger picture that adds context. However, you can't convict on context and the point you are drawing us towards is the fundamental matter.

 

[symyjym]

Evans saw her as a drunk slut and thought she was fair game for a bit of group sex. However if you are going to participate in something like that, you had better make sure that you don't discretely film someone without consent, then sneak into the room as a late visitor for a bit of action, and then flee from the scene.

Evans did not show any respect to her and treated her like a piece of meat when he should have just gone home. But hey I guess once you have labeled someone as a slut it gives you a license to do as you please because in your defense “she was clearly a slut your honour, and was gagging for it”.

If a 19 yo girl drinks a bottle and a half of wine in an evening it will certainly catch up with her later. There was no doubt from witnesses statements that she was very drunk and on the other video CCTV footage at the kebab shop showed her forgetting her bag and then falling over.

The moral of this story is to not gangbang, if you are that way inclined, a teenager who has been drinking heavily. Evans knew exactly what he was doing and he took his chance just for a bit of instant sexual gratification.

Sometimes you may get away with it and sometimes you won't. Live by the sword die by the sword and all that.

 

[Scunner]

There's quite a few misapprehensions about the law in your post. The rejection of leave to appeal means that the Court of Appeal did not consider that there were any arguable grounds to overturn the conviction. You might not be of the view that the evidence satisfied the test of reasonable doubt, but the jury was, and it is the jury's view of the evidence which counts. The appeal judges were satisfied that the judge's directions to the jury were valid, and that there was sufficient evidence to support the conviction. Given this, Evans' chances of success before the Criminal Cases Review Commission are very slim. Even if he were to succeed, the CCRC can only refer the case to a court, it cannot acquit him itself.

It's also pretty ridiculous, potentially slanderous even, to suggest that the LCJ was swayed by the public outcry that would result if Evans were acquitted, and tailored his decision accordingly. The appeal was rejected because it was a weak appeal - challenging the findings of fact rather than identifying an error of law.

Lol! Are you actually trying to argue that the LCJ does not take into consideration wider opinion and consequence when making decisions, especially for the 'greater good'?

Bear in mind these are their own words with reference to why they were not perturbed by the omission of the direction 'drunken consent is still consent' from the summing up: 'On occasions when those words are used or the issue is put in that way, it causes umbrage and indeed distress'. So, they were certainly swayed by wider forces - possible distress - rather than the legal principle here weren't they?

I know that the CCRC can only refer, but their existence as a public, independent, body is in place for exactly this kind of debate especially where the LCJ's office are somewhat hamstrung by earlier decisions. Evans' legal team clearly think so too.

 

[Scunner]

Evans saw her as a drunk slut and thought she was fair game for a bit of group sex. However if you are going to participate in something like that, you had better make sure that you don't discretely film someone without consent, then sneak into the room as a late visitor for a bit of action, and then flee from the scene.

Evans did not show any respect to her and treated her like a piece of meat when he should have just gone home. But hey I guess once you have labeled someone as a slut it gives you a license to do as you please because in your defense “she was clearly a slut your honour, and was gagging for it”.

If a 19 yo girl drinks a bottle and a half of wine in an evening it will certainly catch up with her later. There was no doubt from witnesses statements that she was very drunk and on the other video CCTV footage at the kebab shop showed her forgetting her bag and then falling over.

The moral of this story is to not gangbang, if you are that way inclined, a teenager who has been drinking heavily. Evans knew exactly what he was doing and he took his chance just for a bit of instant sexual gratification.

Sometimes you may get away with it and sometimes you won't. Live by the sword die by the sword and all that.

Emotionally I think we could all agree with that...however, she was a friend of Macdonald prior to the night concerned, a 'good friend' apparently. So this raises other questions, some of which may invalidate the totally disassociated conclusions you come to above. And may yet in the future......

 

[JCL - the new kid in town]

Evans' legal team clearly think so too.

well that may not be true, they get paid regardless and the longer it goes on the more they get paid......

 

[Scunner]

well that may not be true, they get paid regardless and the longer it goes on the more they get paid......

Not necessarily, I expect that they're on a fixed retainer with consideration given to the amount of publicity garnered by this sort of thing. Carter Ruck LLP (for example) are famed for taking on horrendously difficult cases at face value, benefiting all the time from the free publicity. If Evans' backers have any sense this case will have contingency built in.

 

[Scunner]

The common law precedent under discussion is here:

http://www.independent.co.uk/news/u...-sex-is-still-consent-judge-rules-516722.html

 

[symyjym]

Emotionally I think we could all agree with that...however, she was a friend of Macdonald prior to the night concerned, a 'good friend' apparently. So this raises other questions, some of which may invalidate the totally disassociated conclusions you come to above. And may yet in the future......

It depends on how you define a good friend at that age. Does she still hang out with Macdonald?

If Macdonald really thought of her as a good friend he would not have encouraged the event and he would have been protective for her. He wasn’t really her friend, but she trusted him as one.

Acquaintance, yes, good friend, I don’t think so.

 

[mejonaNO12 aka riskit]

I've left this thread for 5 days and thought I'd pop in and find you've finally decided if he was guilty or not.

I'll give this another 5 days. Carry on.

 

[Hamilton]

Lol! Are you actually trying to argue that the LCJ does not take into consideration wider opinion and consequence when making decisions, especially for the 'greater good'?

Bear in mind these are their own words with reference to why they were not perturbed by the omission of the direction 'drunken consent is still consent' from the summing up: 'On occasions when those words are used or the issue is put in that way, it causes umbrage and indeed distress'. So, they were certainly swayed by wider forces - possible distress - rather than the legal principle here weren't they?

I know that the CCRC can only refer, but their existence as a public, independent, body is in place for exactly this kind of debate especially where the LCJ's office are somewhat hamstrung by earlier decisions. Evans' legal team clearly think so too.

But the appeal judges were satisfied that the trail judge, whilst not using the explicit words 'drunken consent is still consent' did clearly make the jury aware of this distinction. We are talking about a technicality, and a technicality which Evan's team could pursue. Do you think this would result in a retrial, and if so, what chance would there be of securing a jury given the amount of publicity?

 

[Hamilton]

I've left this thread for 5 days and thought I'd pop in and find you've finally decided if he was guilty or not.

I'll give this another 5 days. Carry on.

I think we may have got to a place where we know he's guilty. It's a question of whether he's technically guilty.

It'll need longer than 5 days I fear.