Few cases have sparked the public’s interest in the rules surrounding cross-examination like the 2016 case of the footballer Ched Evans. Upon his acquittal in October 2016, rape victims’ support groups immediately started raising their concerns in the press that the decision to allow cross-examination of the Complainant as to her previous sexual history in Mr. Evans’ retrial would open the floodgates for this type of questioning in similar cases and would discourage other victims of sexual crimes from coming forward in the future. Six months on, have those fears proved to be well-founded?
In April 2012, Mr. Evans was convicted of rape and sentenced to 5 years imprisonment. He was released on licence in October 2014 having served half of his sentence. In 2015 Mr. Evans’ legal team submitted fresh evidence to the Criminal Cases Review Commission, leading the Court of Appeal to quash his conviction. At the subsequent retrial in October 2016 he was acquitted. The fresh evidence which sparked the successful appeal and was admitted before the jury related to the Complainant’s previous sexual history. Two men came forward to say that not only had the Complainant engaged in drunken but consensual sexual intercourse with them in the same month as the allegation against Mr. Evans, but that she had used specific words of encouragement with them which mirrored what Mr. Evans said she had used with him.
It is always useful to remember when considering Mr. Evans’ case that the Complainant did not allege she had been raped when she went to the police. Her evidence was simply that she did not remember what happened on the relevant evening. The Crown’s case at Court was that she was too intoxicated to have the capacity to consent and that Mr. Evans could not have reasonably believed that she did consent.
The fresh evidence was admitted after careful consideration by the Court of Appeal of s.41 Youth Justice and Criminal Evidence Act 1999 which provides that:-
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
(a) that issue is not an issue of consent; or
(b) […]; or
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
(i) 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, or
that the similarity cannot reasonably be explained as a coincidence.
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question-
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
In R v Evans  EWCA Crim 452 Lady Justice Hallett and her colleagues concluded that the evidence of the two new witnesses would have been relevant and admissible evidence at trial within the terms of s.41(3)(c)(i). The Court found that the evidence went to the issue of consent and was so similar to the sexual behaviour of the Complainant which, according to Mr. Evans’, took place as part of the events in which he was accused, that the similarity could not reasonably be explained as coincidence and the evidence was thus admissible. Furthermore, Lady Justice Hallett stated it may also have been admissible under s.41(3)(a) on the issue of reasonable belief.
When s.41 originally came into force, Parliament intended the provisions to counter the myth that ‘unchaste women are more likely to consent to intercourse and in any event are less worthy of belief’. The House of Lords considered the meaning of section 41 in R v A (No. 2)  1 A.C.45. Their Lordships recognised the importance of providing Complainants in sexual offences with protection from unnecessary and intrusive questioning whilst acknowledging that s.41, if interpreted too strictly, has the potential to interfere with the fairness of a trial by forcing judges to exclude relevant and admissible evidence.
In Evans, Lady Justice Hallett was referred to the case of R v T (Abdul) (2004) 2 Cr App R 32 in which the Court found that the s.41 criteria were satisfied. In that case it had been alleged that the Appellant had raped his long-term partner inside a climbing frame in a children’s play area in a park. He applied under s.41(3) to cross-examine the Complainant about an incident which had occurred 3-4 weeks earlier where the Complainant consented to sex with the Appellant inside the same climbing frame. The Court found that certainly the location of the act and the position adopted were similarities which could not reasonably be explained as coincidence. There is therefore precedent for the admission of the details of previous sexual encounters under s.41 and indeed even in Mr. Evan’s appeal, all parties agreed that what will amount to being “so similar” such that it cannot reasonably be explained as a coincidence will depend upon the given facts and will vary from case to case. Of course, Evans can be differentiated from T(Abdul) on the basis that the evidence related to different sexual partners rather than the same partner, but the decision of the Court of Appeal in 2016 did not amount to a change in the law; it was an application of s.41 based upon the specific circumstances of the evidence of the two new witnesses in this particular case.
Since the consideration of Mr. Evans’ appeal, other cases involving s.41 have come before the Court of Appeal. In R. v Guthrie (Germaine)  EWCA Crim 1633 the Defendant was charged with rape. The Crown’s case was that the Defendant’s brother had been driving the Complainant home in the Defendant’s car after a party when the car was stopped by the police and impounded on the grounds that the driver was driving over the prescribed limit. The Complainant had made her way home by bus but the Defendant had then arrived at her home, angry about the car, brandishing a knife and a rolling pin, and had raped her. The Defendant accepted that sexual intercourse had taken place but asserted that the Complainant had consented to it. At trial the Defendant applied for the leave of the court under s.41 to cross-examine the Complainant about occasions on which she had previously had consensual sexual intercourse with the Defendant in her home, often in circumstances in which drugs had been taken and after a party which had occurred elsewhere. The Defendant contended that leave should be granted because the sexual behaviour was “so similar”. The trial judge dismissed the application and the defendant was convicted. The subsequent appeal was dismissed on the basis that to fall within s.41(3)(c), there had to be relevant similarity which necessitated an exploration of the circumstances so as to avoid unfairness to the Defendant; cross-examination would not be allowed if it was tantamount to saying that the Complainant was a person who had engaged in casual sex in the past and therefore would have been more likely to have done so on this occasion. Further, there was an insufficient chronological nexus between the events in this case to render the previous behaviour probative.
So it may be that the public’s fear that the case of Ched Evans has set a dangerous precedent is unfounded. Instead the Courts continue to exercise care in applying the principles set out in s.41, acknowledging the balancing act to be performed between intrusive questioning of a witness and the rights afforded to the Defendant under the ECHR. Evans’ case was an unusual one, with the fresh evidence which was the subject of the s.41 application relating to very specific behaviour of the Complainant in the weeks surrounding the alleged offence. In preceding and subsequent cases, the Court of Appeal have been clear that each case of this type must be considered on its own facts. The Ched Evans appeal did not therefore represent a significant sea-change in the way courts deal with these applications. Whether the way in which the case has been covered in the media will mean that victims of sexual offences will now be disinclined to come forward remains to be seen.