Ched Evans successfully overturned his conviction for raping a teenage girl after uncovering new evidence of her previous sexual history.
After the Wales international striker lost his first appeal four years ago his family employed private investigators to gather new evidence.
They spoke to two men who had sex with the 19-year-old woman in the months before she alleged she had been raped by the footballer in May 2011.
They both gave accounts of the woman’s sexual preferences that were similar to the description put forward by Evans at his original trial and supported his assertion that she did consent to sex with him in the hotel room.
In March this year the striker’s lawyers told a new hearing before the Court of Appeal that this new evidence had not been available at his trial and that undermined the safety of his conviction.
Appeal judges Lady Justice Hallett, Mr Justice Flaux and Sir David Maddison allowed the appeal but ordered a retrial.
Normally in trials involving sexual offences, a complainant’s sexual history is not put before a jury.
But Evans’s legal team sought permission under Section 41 of the Youth Justice and Criminal Evidence Act to question the complainant at his new trial about the statements the two men had made.
To allow the application, the court would have to be satisfied that the issue was one of consent, the behaviour to which they relate was either alleged to have taken place at or about the same time as the alleged offence or is so similar to the complainant’s behaviour at that time that it cannot reasonably be explained as coincidence.
“They all describe a woman who in May and June 2011, having been out drinking, engaged in sexual intercourse with her in particular positions and used a distinctive expression demanding intercourse with her harder,” Lady Justice Hallett said.
“Their accounts sufficiently close resemblance to the appellant’s account as to make the evidence ‘so similar’ that it cannot be reasonably explained as a coincidence.”
Evans’ barrister relied upon the “striking detail” of the statements given by the two men when compared with his client’s account.
The court heard that on the day Evans was convicted of rape, a man, who cannot be named for legal reasons, contacted police as he believed the conviction was wrong.
“The complainant had slept with him so soon after the rape, which he thought inconsistent with her being raped, and he thought, wrongly as he now accepts, that she was motivated by greed,” Lady Justice Hallett said.
The man said he met the woman at Zu Bar in Rhyl and after drinking heavily she offered him a “good time” but she had no recollection the next morning of what happened.
A second man provided a statement stating he had been in a casual relationship with the complainant for a few months in early 2011 – and had sex with her two nights before Evans’ alleged rape.
Last year he made a further statement describing the woman as a “confident sexual partner”, adding that she would take control, changing positions.
Eleanor Laws QC, representing the Crown, opposed the application and said the described sexual activity was “far from unusual” and that the “fresh evidence” of the two men was “not credible” and was not “sufficiently consistent” with Evans’s account.
“Ms Laws suggests the delay in the witnesses coming forward with the new detail bears all the hallmarks of witnesses being fed information by people close to the appellant so as to make statements that would support another appeal,” Lady Justice Hallett said.
“It may well be a rare case in which it will be appropriate to indulge in this kind of forensic examination of sexual behaviour with others.
“In our judgement this is potentially such a rare case. The requirements of Section 41 must give way to the requirements of a fair trial.
“Relevant and admissible evidence cannot be excluded. For those reasons we have concluded that this appeal must be allowed.”