I was a London judge. Sam Kerr’s case should never have gone to trial

The trial of Sam Kerr will shortly end, but whether the verdict is “guilty” or “not guilty”, questions must be asked about whether it should have taken place at all. It arose from an incident that could cause no public danger or alarm, as two distressed young women argued with three male police officers in the safe confines of a police station.

It was, as one of these officers admitted, a “childish” exchange on both sides which went on for half an hour before Kerr’s comment that an officer was white (as well as stupid) was jumped on to charge her with “racially aggravated harassment”.

Questions must be asked about whether Sam Kerr’s charges should have been brought at all. Credit: Marija Ercegovac

Prosecutors initially thought that this insult had caused no “alarm or distress” and refused to take the case to trial. But one officer, 11 months later, made a statement that he had been. This has resulted in an eight-day trial costing the UK taxpayer hundreds of thousands of pounds, for words that (as heard and seen in the video) had no apparent impact at all.

What will surprise most London lawyers was that this was ever brought to trial. Similar cases are dealt with by a caution involving no criminal finding or else by a short hearing in a magistrates court, probably resulting in a fine or a conditional discharge.

Instead, the heavy machinery of English criminal law was wheeled out against Kerr – a charge serious enough to carry a prison sentence, a jury trial and a prosecution for which no expense was spared, by a King’s Counsel (old Etonian, of course) usually found dealing with serious fraud at the Old Bailey. Why this excessive zeal to obtain a conviction over an incident of no consequence? The junior police officer admitted at the trial that he was “determined to pursue the case to the criminal courts”, but why did his superiors and government lawyers in the Crown prosecution service spend so much time and money to do so? Merely because a police officer has been called “white”? Or were they really stung by the suggestion that English policemen might be stupid?

This would hardly come as a revelation. A rich comic vein begins with Shakespeare’s Constable Dogberry and Gilbert and Sullivan’s policemen of Penzance. Recently, the epithet was used by every media and political commentator of senior officers at Scotland Yard, who in “Operation Midland” accused renowned public figures of being paedophiles on the palpably false allegation of a fantasist. I sued Metropolitan Police on behalf of one victim and obtained nearly $2 million for their gross negligence – i.e. their stupidity.

The police were originally minded to lay charges for criminal damage over the taxi window being kicked. Kerr and her partner immediately agreed to pay the fare and cleaning bill, but refused to pay for the damage to the window on the grounds that the taxi driver had falsely imprisoned them in the course of driving to the police station.

To show they were genuinely frightened at the time, Kerr said they had called emergency services, a claim the officers pooh-poohed. Only at the trial were they forced to admit that the call had indeed been made. So Kerr’s claim that they were stupid was not an unreasonable response to their refusal to believe her true story about making the emergency call.

The jury will have to decide, with the help of a 35-minute recording, whether Kerr’s insult at the end amounted to a crime. For the rest of the recording, the two women are heard begging the police to take action against the taxi driver for imprisoning them and it is clear from the emergency call they made that their fear was genuine. The police wrongly believed they were lying and went ahead to charge them with criminal damage to the taxi (a charge that would at most have incurred a small fine) and only when Kerr added that the policeman was “white” did they over-react by adding the charge alleging racial aggravation.

This element was added to English law in 1998 to give courts the power to sentence more heavily for crimes motivated by racial hatred. Care was taken to protect free speech, by requiring the prosecution to prove that they were intended to cause alarm or distress. Whether mere words are likely to do so must depend on the circumstances: a Pakistani policeman would be insulted if called a “Paki” because of the derogatory connotations of the word itself and there are now places where “whitey” might provoke concern. But uncouth words from a distressed woman uttered to a cop who refused to believe her when she was in fact telling the truth in an empty police station are not equivalent to shouting “fire” in a crowded theatre.

I served for some years as a part-time judge for cases like this in London and I do find it deplorable that police should make mountains out of molehills like this. The law was passed to deter explosions of racist violence in cities; it should not have been used to punish a silly insult by an angry detainee, uttered in a police station. Law enforcers have a duty to act proportionately; their attack on Sam Kerr has been an attempt to break a butterfly on a wheel.

Geoffrey Robertson, AO, KC, is author of Crimes Against Humanity, the fifth edition of which is published by Penguin this month.

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