In April, almost five years after the footballer Ched Evans was first accused of raping a 19-year-old waitress in a hotel room, a 16-page judgment on his case was handed down in the appeal court.

It quashed his conviction and ordered a retrial – clearly a huge step for Evans, his complainant and all those around them. But following his acquittal in the retrial, the ramifications may go much further than that.

Women’s support groups and campaigners believe the appeal court’s judgment dangerously undermines the legislation designed to protect victims of sexual assault by restricting what courts can hear about a complainant’s sexual history and behaviour.

There is huge concern that the Evans retrial – during which the complainant was quizzed in detail and at length about whom she had had sex with, the positions she favoured and the language she used during it – may stop some women reporting rape and other offences for fear they will find themselves in the same situation.

The route to this appeal court decision was long, tortuous and controversial.

Evans’ friends and family bankrolled a high-profile campaign to try to prove his innocence. The Ched Evans website offered a £50,000 reward for information leading to the footballer’s acquittal, posted versions of that night’s events favourable to him, and made allegations against the waitress. In the first two years of its operation it received more than 2m hits.

At times the campaign sailed close to the wind. Evans’ fiancee, Natasha Massey, was accused by the prosecution during the retrial of trying to induce a key prosecution witness to change his evidence by flagging up the existence of the reward.

The wealth of Evans and Massey (she is a millionaire’s daughter) meant the Evans camp could assemble a team of PR people and top lawyers who succeeded in getting the accusations against Evans back before a fresh jury. Such resources would be available to very few convicted men.

The appeal

At the heart of the successful appeal were fresh statements from two young men who described their sexual relations with the complainant, who was referred to in the crucial appeal court judgment as X, at around the time of the alleged rape in May 2011.

One, Y, actually came forward the day after Evans was found guilty in April 2012 to say she had had sex with him following the incident. He thought it “inconsistent” that she had slept with him a fortnight after she was attacked and – at a time when social media was alive with abuse about her – he came to the conclusion she was motivated by greed when she went to the police.

A man called Jack Higgins – who along with Evans’ younger brother Ryan voyeuristically peered in through the hotel window at the footballer and X – asked him to speak to Evans’ defence. He was briefly interviewed but his evidence was not used at that time.

In September 2015, the witness was re-interviewed by a private detective who was part of the new beefed-up Evans legal team. At this point he said X directed the sex and used the phrase: “Fuck me harder.” It was the first time he claimed she had used these words.

The explicit phrase is important because it chimes with what Evans claimed had happened in his encounter with X. He continues to insist she used exactly the same language.

A second man, Z, who was in a sexual relationship with X at the time of the alleged rape, had also made a rather bland statement back in September 2011.

In December 2015, he gave a much more detailed account to a member of Evans’ new legal team in which he said X had used the phrase “Go harder” with him.

Kieran Vaughan QC, for Evans, argued at the appeal court in the spring that there were “striking” similarities in the accounts of the two witnesses and that of Evans and they might support a defence of actual consent.

The law that Vaughan and Evans were up against as they tried to get the new testimony of the two men put before a new jury was the Youth and Criminal Evidence Act 1999.

Section 41 imposes stringent restrictions on what evidence can be put before a court by the defence about an alleged victim’s sexual behaviour and on the questioning of the complainant in court.

The provision was designed to counter the “twin myths” – that “unchaste” women are more likely to consent to intercourse and in any event are less worthy of belief.

However, the defence can get such testimony heard – and thus open the alleged victim up to potentially hugely intrusive and upsetting questioning – if the crucial issue is consent and the behaviour the witnesses claim is so similar to how a complainant is said to have acted during an alleged offence that it cannot reasonably be explained as coincidence.

As far back as 2002 Vera Baird QC pointed out the dangers of the exemption and called for an introduction of the Canadian law which states that a defendant must prove “reasonable steps to ascertain that the complainant was consenting”. She said: “That law focuses attention firmly on the events at the time, which must, logically, determine or, at the very least, dominate the defendant’s belief. What the man believed on the basis of rumours about the woman would, rightly, be pushed to the margins and would usually be completely excluded.”

As a result home office published research in 2006 which found that out of rape cases coming out of England and Wales in a three-month period in 2003, applications to introduce sexual history were made in a quarter of cases, two thirds of these were successful.

Eleanor Laws QC, for the crown, described what Evans’ team was trying to do as a “post-trial investigation into the sexual behaviour of a complainant”. She said it had the potential to undermine parliament’s attempt to abolish the “twin myths”.



Laws pointed out the sort of sexual activity the men described and the words the complainant was said to have used were commonplace.

During the appeal hearing, Laws claimed the delay in the men’s testimony bore all the hallmarks of witnesses being “fed” information by people close to Evans. In the retrial, prosecutor Simon Medland QC put to both of them that they had been motivated by the £50,000 reward. The allegations were strongly denied by Evans’ team and the men.

The vice-president of the court of appeal criminal division, Lady Justice Hallett, who heard the appeal with two other judges, said the evidence would be admissible only if the defence could “overcome the high hurdle of relevance and similarity”.



Hallett also said Laws was right to emphasise the importance of offering complainants in sexual offences protection from “intrusive and unnecessary questioning about their sexual history”.

However, she said with “a considerable degree of hesitation” the court had decided that the evidence of Y and Z could be admitted. She added: “This a rare case in which it will be appropriate to indulge in this kind of forensic examination of sexual behaviour with others.” Evans’ conviction was quashed and a retrial ordered.

The ‘bribe’

During the retrial the jury was afforded glimpses into the Evans campaign – they knew there was a reward and heard something of how the two crucial witnesses’ evidence surfaced.

They were not allowed to hear about Massey’s approach to a vital prosecution witness, Gavin Burrough, who was on the hotel reception desk when the complainant arrived that night and who later said she was “out of it”.

The approach came in May 2013, soon after the reward was first offered. Massey sent Burrough a message via Facebook telling him she was at a “loose end”.

She wrote: “We are appealing for new information. There is a £50,000 reward for any new evidence. Do you know anything that could help Ched? He’s spent nearly 13 months locked up in prison for a crime that never happened. I’m pleading with you if you know anything.” She signed off with a kiss.

Burrough did nothing.

The next morning she contacted him again: “OK. I see you have chosen to ignore me. I understand you want to put it all behind you. If you can deal with the fact that Ched is innocent and he’s spending the next 17 months in prison and you can just sit back and let it happen so be it. I’m literally begging. If you know anything please help me x.”

In legal arguments at Cardiff, the prosecution argued that the messages should be put before the jury. Medland claimed Burrough was being asked to consider altering his testimony. He said: “There is no direct evidence it is a bribe but it is subtle and repeated inducement to change his evidence to support the case for the defendant.’’ Medland said the messages were “akin to a bribe” and had “the flavour of a bribe”.

The prosecution suggested the “inducement” demonstrated the “imbalance of power” between Evans and the complainant. He was a wealthy, professional footballer, she a 19-year-old waitress. Medland said it would be “artificial to imagine Evans was unaware of what was going on”.

Evans’ defence said he was in prison at the time and there was no evidence he knew anything of the messages or that they were sent at his behest. The trial judge, Mrs Justice Nicola Davies, allowed the existence of the reward to go before the jury but not Massey’s approach and rejected the claim it had the “flavour of a bribe”.

There is no suggestion that Evans’ team has done anything wrong. But there is a real concern that the appeal case and the retrial will stop abused women coming forward and will make it harder for prosecutors to get justice for victims of sexual offences.