On Friday 03 November 2023, Conservative MP for Beckenham Mr Bob Stewart was convicted of a Racially Aggravated Public Order Act offence after a Trial before Westminster Magistrates Court.
The relevant legislation that he was convicted under was section 4A of the Public Order Act 1986 (the offence of “Intentional harassment, alarm or distress”) and section 31 of the Crime and Disorder Act 1998 (“Racially-aggravated public order offences”).
The incident at hand, which was captured on video, had occurred on 14 December 2022, when Mr Stewart was accosted by an activist outside of the Foreign Office’s Lancaster House and said to the activist:
- “Go away, I hate you. You make a lot of fuss. Go back to Bahrain”,
- “Shut up, you stupid man”,
- “You’re taking money off my country, go away”.
At an initial Plea hearing on 19 July 2023, Mr Stewart pleaded Not Guilty to two offences:
- [He], with intent to cause Sayed Ahmed Alwadaei harassment, alarm or distress, used threatening, abusive or insulting words or behaviour, thereby causing that person or another harassment, alarm or distress, and the offence was racially aggravated.
- [He], with intent to cause Sayed Ahmed Alwadaei harassment, alarm or distress, used threatening, abusive or insulting words or behaviour, thereby causing that person or another harassment, alarm or distress.
Both charges relate to the same incident, and the second charge was laid by the Prosecution as a direct alternative to the first charge, so that the Court could still find Mr Stewart guilty of causing and intending to cause “harassment, alarm or distress” regardless of whether there was a “racially aggravated” element to his conduct.
In his defence, it is reported that Mr Stewart submitted:
“I am not a racist. He was saying that I was corrupt and that I had taken money. My honour was at stake in front of a large number of ambassadors. It upset me and I thought it was extremely offensive… I made the assumption [that] he too was living in this country and was benefiting from living in this country. I certainly didn’t mean he was a freeloader… [I] used the phrase ‘my country’ because [I] assumed Alwadaei was from Bahrain… but [I] accept that the words ‘this country’ would perhaps have been better”.
The questions for the Trial Court to determine, therefore, were: were his words “threatening, abusive or insulting”; did Mr Stewart intend to cause “harassment, alarm, or distress” by using those words; did Mr Stewart cause “harassment, alarm, or distress” by using those words; was the offence at all “racially aggravated”?
The phrase “threatening, abusive or insulting” is not defined in the 1986 Public Order Act, but case law (namely DPP v Clarke (1991) 94 Cr App R 359 and Brutus v Cozens (1973) AC 854) held that whether words are “threatening, abusive or insulting” is a question of fact, and the words should be given their ordinary meaning.
In the case at hand, the Court clearly felt that telling someone you “hate [them]”, calling them a “stupid man”, accusing them of “taking money off [your] country” and telling them to “go back to Bahrain” were in fact, to their mind, threatening, abusive or insulting.
An intention to cause “harassment, alarm or distress” must be established in order to prove guilt, and whether it was the intention of Mr Stewart, in the context and circumstances in which he found himself, to cause harassment, alarm or distress was a question for Magistrates to decide (DPP v Weeks [2000] All ER (D) 800). Intent as a general concept is too wide in scope for this blog, but the decision in Woollin [1999] AC 82 provides a model that when determining intent the following should be considered: “how probable was the consequence which resulted from the defendant’s voluntary act? Did he foresee that consequence?”.
In context, if they believed that it was likely that Mr Alwadaei would be caused harassment, alarm or distress by Mr Stewarts words, and Mr Stewart could reasonably foresee that the words he was using would likely cause harassment, alarm, or distress, then the Court could infer that Mr Stewart intended to cause harassment, alarm or distress through the deployment of said words.
The ‘victim’ of offences of this nature is the individual who is actually harassed, alarmed or distressed, even if the intended target is someone else Valentine [2017] EWCA Crim 207. In this case, the intended target and the actual victim are the same individual, Mr Alwadaei. Much like “threatening, abusive or insulting”, the phrase “harassment, alarm or distress” is given no definition within the 1986 Public Order Act. However, in the case of R (R) v DPP [2006] EWHC 1375, Mr Justice Toulson provides some assistance:
“The word “distress” in s.4A takes its colour from its context. It is part of a trio of words: harassment, alarm, or distress. They are expressed as alternatives, but in combination they give a sense of the mischief which the section is aimed at preventing. They are relatively strong words befitting an offence which may carry imprisonment or a substantial fine. I would hold that the word “distress” in this context requires emotional disturbance or upset. The statute does not attempt to define the degree required. It does not have to be grave but nor should the requirement be trivialized. There has to be something which amounts to real emotional disturbance or upset.”
Given that there is no transcript available from Westminster Magistrates Court to determine the evidence he provided at Trial, we are reliant upon Mr Alwadaei’s post-trial interviews to determine whether he was caused “harassment, alarm or distress”. Mr Alwadaei has told reporters:
“I feel that I was dehumanised, like I was someone who is not welcomed in the UK. Because of my skin colour, because of where I came from, he feels I am taking money from his country.”
Assuming that evidence to this effect was provided by Mr Alwadaei during the Trial, the Magistrates could reasonably conclude that Mr Alwadaei was caused “real emotional disturbance or upset” by this incident.
The Magistrates finding the answer to those three questions to be ‘yes’ would make Mr Stewart guilty to the second charge, the unaggravated form of the offence. The final point for consideration, then, would be whether Mr Stewart’s actions were “racially aggravated”. An offence is considered to be “racially aggravated” if, per section 28 Crime and Disorder Act 1998:
- At the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group,
- The offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.
Much like with intent, racial “hostility” is a question of fact to be determined by the Court (Johnson v DPP [2008] EWHC 509). The statutory language is given a broad and non-technical meaning, and Mr Alwadaei being Bahraini (or perceived to be Bahraini by Mr Stewart) would be sufficient to make him a member (or presumed member) of a “racial group” for the purposes of this section, per White [2001] EWCA Crim 216.
DPP v Green [2004] EWHC 1225 sets out that it is irrelevant whether a Defendant had additional motives behind their choice of words. Whilst Mr Stewart stated that he “[was] not a racist”, the case of R v Rogers [2007] UKHL 8 showed that using the expression “go back to your own country” could constitute hostility towards a member of a racial group. By telling Mr Alwadaei to “go back to Bahrain”, Mr Stewart clearly perceived Mr Alwadaei to be part of a “racial group”– namely Bahraini- and his choice of words demonstrated a hostility towards Mr Alwadaei on the basis of him being part of said “racial group”, namely telling him to “go back [there]”.
It was on this basis that Mr Stewart was convicted of the racially aggravated form of the offence. He has since surrendered the Conservative whip.
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This firm is regularly instructed in relation to these type of offences. A person can find themselves before a criminal court for using words that are said off the cuff in an emotionally charged situation which can cause a person to be investigated have criminal court proceedings brought against them.
As described the law can be quite complex. James Murray Solicitors have an expert crime team who can assist if a person faces such a situation, whether under arrest or before the Court.