The major flaw with racial charge against Sam Kerr that should’ve seen the case abandoned

There’s one big reason the week-long racial harassment trial against Matildas legend Sam Kerr should never have been brought to court, experts say.

For the past week, all eyes have been on a London courthouse that few in Australia could locate on a map, to watch Matildas captain and soccer star Sam Kerr face racial harassment charges.

It was a mess of a case, of which Kerr was ultimately acquitted on Wednesday, that academics and a former British judge say should probably never have been brought.

Geoffrey Robertson, a human rights barrister and author who served as a judge in London, wrote in an op-ed for The Sydney Morning Herald that “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,” Mr Robertson wrote.

“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’.”

Body cam vision of Sam Kerr being interviewed in a London police station facing charges of “racially aggravated harassment”.

Mr Robertson said the “heavy machinery of criminal law” was wheeled out in a futile exercise that would set the British taxpayer back hundreds of thousands of pounds.

“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.”

But the fact it went to trial has sparked a renewed debate about what constitutes racism and broader questions about whether a person of colour is capable of being racist towards someone who’s white.

Kerr was charged with one count of racially aggravated harassment under the Public Order Act, with the prosecution arguing she caused “alarm and distress” to a policeman by calling him “f***ing stupid and white”.

Sam Kerr arrives with fiance Kristie Mewis at Kingston Crown Court, south west London. Picture: Getty

Constable Stephen Lovell told the court the remark had “upset” him and left him feeling “humiliated … shocked … (and) belittled” over the incident on January 30, 2023.

That was enough for the matter to come to court.

In the end, the foundation of the high-profile matter boiled down to one important factor – who held the position of power when Kerr said those four words.

Anyone can be ‘racist’

Prosecutor Bill Emlyn Jones told the court that the law “does not discriminate between different races when it comes to racist language”.

“In the heat of the moment this was an insult delivered in reference to race and that is what the law prohibits,” Mr Jones said.

“The test for you is the same regardless of the ethnicity in question. She was insulting him and, at the time, she was hostile to him by reference to his race. So the fact you will be able to think of much worse examples of racial aggravation is irrelevant.”

That legal stance has been evident in recent times with a few high-profile cases.

In March 2024, a man was found not guilty of racially aggravated malicious communications for sending an emoji of a raccoon to a black politician on social media.

The defendant was himself black.

A few months later in May, an Indian woman held up a sign at a pro-Palestine protest that showed former Prime Minister Rishi Sunak and his Home Secretary Suella Braverman was cartoon coconuts.

After a trial that bore hallmarks to Kerr’s, the woman was acquitted.

In Kerr’s case, her use of the word “white” brought a racial element to her behaviour, but for police and the prosecution to conclude it was therefore racist is deeply flawed, experts say.

A question of power

Analysing the case against Kerr, academic Mario Peucher, a principal research fellow at Victoria University’s Institute for Sustainable Industries and Liveable Cities, said ‘racial’ is not the same as ‘racist’.

“There are many definitions of racism, but there has been a broad consensus for decades that racism is more than ‘just’ prejudice and discriminatory behaviour,” Dr Peucher wrote for The Conversation.

“It is not simply a matter of less favourable treatment of an individual or group of people based on their actual or ascribed ethnic background, skin colour, origin or related characteristics.

“Racism also reflects and manifests as systemic exclusion and marginalisation based on historically rooted power imbalances and racial hierarchies that put white people at the top.”

Sam Kerr has published a statement to her Instagram page following the end of her trial in London

Or, to put it “very simply”, he wrote that the scholarly definition is “that racism equals power plus prejudice”.

“This may sound a bit abstract, but if we do not recognise this power dynamic, we trivialise racism as little more than name-calling,” he wrote.

“We will fail to understand how racism operates and how it continues to affect people from racially marginalised groups in their daily lives.”

Laws in the UK were first introduced with the intention of “enhancing the legal protections for those who were considered vulnerable to racism”.

Dr Peucher questioned whether a white male policeman – the demographic most common in the Metropolitan Police at 82 per cent and 71 per cent respectively – was the vulnerable party in this case.

The case has tarnished the glittering career of Matildas captain Sam Kerr. Picture: AFP

The week-long case stemmed from Kerr’s use of the words “f***ing stupid and white” towards a police officer.

Indeed, the court heard Lovell had acted in an antagonising manner by dismissing Kerr and fiance Kristie Mewis’ claims they were fearful of the taxi driver who brought them to the station.

Lovell has also referred to the footballer as “little missy” and scoffed at her as she tried to explain her behaviour.

“It is difficult to imagine a person on the streets of London with more institutional power than a white police officer,” Dr Peucher said.

“Being called a [stupid and white] might hurt someone’s feelings. But while I’m in no position to judge whether Sam Kerr’s actions have caused ‘distress’ to the officer – as the law would require – labelling the incident as racist is clearly not in line with what racism means.”

Treating them as such would undermine the original intentions of anti-discrimination law and would not align with their institutional and systemic dimensions.

“Claims of anti-white or ‘reverse’ racism are based on a shallow, misguided and inaccurate understanding of what racism really constitutes.”

A tricky thing to prosecute

Criminal law and criminology expert Professor Mark Walters from the University of Sussex considered the complexities of the law in the context of arrests made at pro-Palestine protests.

One section of the Public Order Act describes an offence as being committed where someone uses words or exhibits behaviour deemed to be “threatening, abusive, or insulting” and intends to cause a person “harassment, alarm or distress”.

The legislation doesn’t define what “threatening, abusive, or insulting” is, although Professor Walters said some “limited guidance” has emerged in the past from the Court of Appeal, he wrote for The Conversation.

Those cases established that “annoying” or “rude and offensive” behaviour may not necessarily amount to something “insulting”.

Sam Kerr leaves court after being found not guilty of causing racially aggravated harassment. Picture: Getty

Professor Walters pointed out that in all criminal cases, the prosecution is required to weigh up whether it’s in the public interest to bring a matter before the courts.

In the Kerr case, given it took a jury less than four hours to reach a unanimous not-guilty verdict, it’s questionable whether that burden was met.

Also now firmly in question is why the prosecution believed it could adequately demonstrate that Kerr had not only meant to cause specific racial distress, but that Lovell felt he had suffered it.

It emerged in court that the police officer redrafted his formal statement 11 months after the fact to make a new reference to being harassed on the basis of race.

And it was confirmed that Kerr had on the night paid the taxi driver £900 (AU$1780) for the damage to the window.

Full picture was lacking

When the charges against Kerr first surfaced, initial media reports citing unnamed police sources described the footballer as having called the Metropolitan Police officer a “dumb white bastard”.

She was characterised as being belligerent and intoxicated after she and Mewis vandalised a taxi that Kerr had vomited out of.

When body cam footage was played in court, it was confirmed Kerr had called the officer “f***ing stupid and white” and not a “bastard” – a word that would’ve added some weight to the harassment claim.

The full context of the incident was also missing from initial reporting.

The women claimed they were on their way home from a night out when Kerr was sick out of the window of a taxi, which prompted a fiery exchange with the driver.

They claimed the driver then locked them inside the vehicle and aggressively accelerated, and was weaving along the road, which scared them enough to call 999, the British equivalent of triple-0.

Mewis then smashed a window, saying she was trying to find a way for the pair to escape, before the cab arrived at Twickenham Police Station.

Kerr crawled out the shattered window and opened the door from the outside. They rushed to an officer to seek help, they said, but instead were detained.

Sam Kerr and fiance Kristie Mewis said they felt fearful after being locked inside the speeding taxi.

When they relayed their version of events to police inside, including that they had phoned 999 for help, they weren’t believed.

Lovell called Kerr “little missy” and said the call to police from inside the cab hadn’t happened, and questioned why she and Mewis had been fearful in the first place.

Kerr made a reference to the horrific murder of Sarah Everard, who was abducted in London in early 2021 and killed by an off-duty police officer.

It was one of several instances of violence against women that has prompted a groundswell of community anger.

Lovell shot back: “Do you think a taxi driver that was going to rape and kill you would drive you to a police station? No.”

Kerr questioned whether their treatment was a “racial f***ing thing” and said she felt “antagonised”.

Sam Kerr plays for British club Chelsea and is the captain of the Matildas. Picture: Getty

During the trial, the court heard Kerr and Mewis had indeed phoned 999 to express their fear over being “held hostage” and the driver’s dangerous conduct.

Kerr’s lawyer Grace Forbes slammed the actions of police as “completely unacceptable”.

“Two individuals went straight up to a marked police car looking for help in a state of distress. How and why did we go from that to what was an utterly unproductive, heated, argument?”

Police also never investigated the claims against the driver, it emerged in court, prompting Ms Forbes to point out: “Even if you are drunk, you can still be a victim of crime.”

“PC Lovell conceded in evidence that their allegations were capable of amounting to dangerous driving and false imprisonment. Why did he say on the night what she had told him didn’t amount to any offences?”

Originally published as The major flaw with racial charge against Sam Kerr that should’ve seen the case abandoned