This is interesting... The new evidence that they allowed... Quick tl:dr version... When Ched was originally nicked he said she thought she'd consented because she'd asked to be done doggy and shouted 'f*** me harder'. The two dudes who were allowed to give evidence said they banged her around the same time and that she had done the same thing.
Here's what some barrister thinks:
We now know that the principal nature of this fresh evidence was as follows:
A man, O, gave evidence that, two weeks after 29 May 2011, he had been out drinking with X, and had engaged in consensual sexual intercourse, during which she instructed him to penetrate her vaginally from behind, shouting, “f*** me harder”.
A second man, S, gave evidence that, on 28 May 2011, X had engaged him in a night of drunken sexual activity, in which she adopted the same sexual position and used words, “Go harder”.
Evans’ case at trial was that X had acted in the same way on the 29 May 2011, encouraging him to penetrate her “doggy style” and using the words “f*** me harder”. This, it was argued, demonstrated that she was consenting, and also supported the reasonableness of his belief that she was consenting.
One of the exceptions under section 41(3) allows for evidence of sexual history to be adduced, and questions asked of the complainant about it, where the evidence relates to the issue of consent, and is of sexual behaviour of the complainant which is “so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused…that the similarity cannot reasonably be described as a coincidence”. In short, it is beyond coincidence, the defence argued in the Court of Appeal, that X would consensually engage in this specific type of sex act using these specific words on occasions around the time of 29 May, but that she was not consenting in the same circumstances on that date. This tends to show that, drunk though she was, she was sufficiently in control of her senses to give consent, and, furthermore, to give Evans the impression that she was consenting. This, the defence argued, is relevant to the jury’s assessment of whether she was consenting, and whether Evans reasonably believed that she was.
The Court of Appeal, having considered other case law, agreed that in these unusual circumstances the fresh evidence ought to be admitted, and that X should be questioned on what the new witnesses had to say. Now it may be (I haven’t had the time to properly apply my mind to it) that a forensic analysis of the Court of Appeal’s reasoning will reveal a flaw, or an inappropriate leap, or even a misinterpretation of previous binding authority. It may be that the Court’s application of the strict criteria for agreeing to admit fresh evidence was arguably not met. Such things are not unknown. The Court of Appeal sometimes fluffs up. But unless you’ve read the judgment, and have carried out the legal analysis and the research, you’re not able to say, are you? So, I urge you, stop spreading speculation which is not only misleading and removed from fact, but likely to deter victims from coming forward.
UPDATE: A special mention goes to comments this evening from End Violence Against Women: “We are very concerned at the precedent which might have been set in this case for allowing sexual history of complainants to be admissible evidence.” Allow me to help: The precedent that has been set is none. The Court of Appeal decision sets down no new application of law or principle, and section 41 continues to operate exactly as it did before, excluding the vast, vast majority of questions about previous sexual behaviour. But good job on needlessly terrifying the women you claim to support.
