Ched Evan’s application to appeal against his conviction and sentence of 5 years for rape was refused on 6th November 2012. Crimeline has the transcript of the judgment.
The facts of the case are well know, but a good overview from the BBC website is here. We have covered the sentences for the ‘tweeters’ here and a guide to how appeals to the Court of Appeal work here.
It is important to note that this was a renewed application (rather than a full appeal) which means that a High Court Judge has already stated that there are no grounds of appeal. The Judges (The Lord Chief Justice, Mr Justice Mitting and Mr Justice Griffith Williams) were not re-evaluating the case afresh, but rather seeing that the conviction was ‘safe’ and the sentence was in the appropriate range.
Grounds of Appeal
Conviction – The grounds of
(1) The verdict of guilty for Mr Evans was inconsistent with the acquittal of Mr McDonald.
(2) The Summing Up was flawed because the Judge failed to properly tell the jury that:
- The victim could still consent even if she was drunk (often summarised by saying ‘a drunken consent is still consent’), and,
- The victim could still have been consenting even if, because of alcohol, she had no recollection of the evening.
(3) There was ‘fresh evidence’, evidence that had not been available to go before the jury, and had the jury heard this then they may not have come to the same conclusion (that Mr Evans was guilty). This evidence fell into two parts:
- Witnesses who confirmed that the victim had previously had evening where she had drunk so much that she could not remember what had happened, and,
- A pharmacologist who stated that whilst the victim may have had amnesia (inducced by alcohol) this did not mean that she lacked the capacity to consent.
(4) In any event, there was a ‘lurking doubt’ as to the safety of the conviction.
Sentence – The sentence of 5 years was ‘manifestly excessive’. It is not clear what the exact grounds were, but it appears that it was on the basis that because there was no violence or force and the victim had no real recollection of the incident, a sentence of 4 years should have been passed.
The Court’s Judgment
The Court dismissed both applications.
Conviction – Taking the grounds in turn :
(1) ‘Inconsistent verdicts’ is a notoriously difficult ground of appeal to succeed on (see here for a case that sets out the principles). In this case, the Court concluded that it was perfectly possible for the jury to have thought it possible that Mr McDonald reasonably believed that the victim was consenting to sex with him, but concluding that they were sure that Mr Evans did not have that belief when he had sex with her.
(2) The jury were given a proper direction. This is a complicated area (see the case of Bree for a discussion), but the Court decided that the Judge’s direction to the jury was correct.
(3) The evidence relating to the victim being drunk on other occasions was irrelevant and not, in the end, relied on by Mr Evans’ lawyers. The evidence from the pharmacologist was found by the Court to not be ‘admissible’. It was noted that what the pharmacologist was saying was contrary to what Mr Evans had been saying in the Crown Court and was, in any way, not relevant and would not have made any difference to the jury’s verdict.
(4) The ‘lurking doubt’ ground is based on the case of Cooper from 1969. It does not assert any particular legal error but asks the Court to consider, in light of all the evidence, that there is ‘lurking doubt’, a general feeling of unease, about the conviction. This is rarely successful, and was not here. The reason for this is that the Court of Appeal traditionally respect the verdict of a jury and will not go behind it unless there is a legal error.
Sentence – The starting point for this category of rape is 5 years. The Court found that there were no reasons to interfere with the sentence of 5 years passed by the trial Judge, especially as the Judge had heard the whole of the evidence.
Is their any penalty for losing the appeal?
In short, no. There is no power to increase the sentence for bringing an appeal that does not succeed. Whilst it is likely that Mr Evans was paying privately and could afford to have paid the costs of the hearing, on an application for permission to appeal, the Prosecution would not normally be present to be paid their costs.
What happens now? Can there be another appeal?
No. That is the end of the line. There can be no appeal to the Supreme Court as the Court of Appeal did not give a judgment (they refused permission to appeal). In any event, even had permission been granted, the Supreme Court would only consider hearing a case that raised an important point of law, and this appears to be a case of a factual dispute that does not deal with any legal issues.
The only possibility for a further appeal is if there is ‘fresh evidence’ and then Mr Evans can apply to the Criminal Cases Review Commission to review the conviction. It is difficult to see what sort of fresh evidence could be found. There is no realistic possibility of further challenging the sentence of 5 years (which means that he will be released in about two years from now).