The fallout from the trial of Sam Kerr

Renowned human rights lawyer, and founding head of Doughty Street Chambers in London, Geoffrey Robertson KC has claimed that in charging the star footballer, the Crown Prosecution Service “wrongly authorised this prosecution”.

Kerr, a striker for Chelsea Football Club Women’s Super League since 2020 and captain of the Matildas, was acquitted of racially aggravated harassment on February 11. Kerr, who is of Indian descent, called a white, British police officer, PC Stephen Lovell, “f****** stupid and white” after being taken to the station by a taxi driver following a dispute over the fare and cost of cleaning up vomit in January 2023.

Kerr alleged the taxi trip had felt like a hostage situation in which the driver was behaving erratically and speeding, and in recounting this to Lovell, said she felt dismissed and doubted. In Lovell’s original statement, he had not expressed that Kerr’s “f****** stupid and white” comment had been upsetting. The Crown Prosecution Service had dismissed the charges on the grounds of insufficient evidence in February 2023.

When Lowell made a second statement in December 2023, he claimed Kerr’s comments had “shocked, upset and humiliated” him. At that point, the CPS opted to charge Kerr with racially aggravated intentional harassment, carrying a possible two-year sentence.

In order for the charge to be proven, the prosecution had to prove Kerr intended to harm Lovell with the comments, that the comments were racially motivated, and that they caused the officer harassment, alarm, or distress.

On 12 February, a jury found Kerr not guilty following a seven day trial. No application was made by her legal team for costs, and the trial Judge Peter Lodder said the star player’s behaviour on the night in question “contributed significantly to the bringing of this allegation.”

In a statement after the trial, Kerr said “following today’s not guilty verdict, I can finally put this challenging period behind me. While I apologise for expressing myself poorly on what was a traumatic evening, I have always maintained that I did not intend to insult or harm anyone and I am thankful that the jury unanimously agreed.”

Harj Narulla is a barrister at Doughty Street Chambers, a former Rhodes Scholar and UNSW graduate, and interned as regulatory and commercial counsel for Football Australia between November 2012 and February 2013.

Narulla explains the CPS has nation-wide jurisdiction, as opposed to Australia’s system of state-level Directors of Public Prosecutions, with a Commonwealth Director of Public Prosecutions for federal offences. The CPS prosecutes criminal cases on behalf of the Crown and operates independently of the police.

Lawyers working at the CPS are government employees. The CPS is led by the Director of Public Prosecutions (DPP) and is an independent body within the UK criminal justice system. The DPP is responsible for ensuring the CPS operates lawfully and in the public interest. The Attorney General, Richard Hermer, appoints the DPP. UK Prime Minister Keir Starmer was formerly the DPP between 2008-2013.

Robertson claim ‘no public interest’ in charging Kerr

The prominent barrister Geoffrey Roberstson KC says, “The decision to prosecute appears to have been made by a lawyer in the CPS after it was turned down on the ground that there is no evidence of anyone being alarmed or put in fear.  Then they brought forward evidence by an officer who claimed he was upset although the tape recording did not reveal any sign of perturbation on his part.”

“I have supported the legal amendments in 1998 which added ‘racial aggravation’ as a separate and more serious offence, and this charge (with prison sentence and jury trial) was suitable for cases which involved racial hatred and public disorder. This case was bereft of this dimension and the CPS was wrong, in my view, to bring it at great public expense (with a leading silk) which could not be justified.

“It’s a good example, incidentally, of the importance of suspects having the right to a solicitor before answering police questions. Kerr was inebriated and distressed and any solicitor would have stopped [her] from trading insults with the police and avoided an interview until the next day. That it was unnecessary to prosecute should have been obvious to the CPS and the fact that it was not does prove the continuing importance of jury trial.”

Narulla added “it is plain that there was no public interest in authorising a prosecution of this kind. The case has shone a light on some of the practices used by police to bring flimsy cases to trial where there is limited evidence. This case has shown that regardless of your level of success, if you are a woman of colour, you are often held to different standards in society and in the criminal justice system.”

Narulla explains that the CPS has internal review mechanisms and periodically reviews its own prosecutorial decisions. He says, “This approach clearly lacks in transparency and external oversight, which could be provided by an investigation from the HM Crown Prosecution Service Inspectorate (HMCPSI), the Attorney General or parliamentary committees.”

The HMCPSI has a statutory duty to inspect the CPS. While the Chief Inspector of the HMCPSI is appointed by the Attorney General they act independently of the Attorney General and government. The Chief Inspector is responsible for deciding which inspections to undertake and how to undertake them.

According to an official 2024-25 CPS memorandum on estimated costs, “Prosecutors must be fair, objective, and independent. To charge someone with a criminal offence, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and that prosecution is in the public interest.”

Further, the memorandum pointed to the CPS success in winning public confidence, claiming: “The CPS aims to ensure we work with partners to serve victims and witnesses and uphold the rights of defendants in a way that is fair and understood by all communities by ensuring:

• Victims and witnesses have a fair experience interacting with us, regardless of outcome
• We understand how best to serve our diverse communities
• We are a leading voice in ensuring defendants are treated fairly by the CJS
• The public understand our value.”

Narulla says, “The Victims’ Right to Review scheme allows victims to request a review of a CPS decision not to prosecute, which has a sound policy basis. However, as the alleged victim in this case, PC Stephen Lovell was able to use the scheme as a basis to have the CPS reconsider their initial decision not to prosecute. This relied on him making a further statement that he was ‘shocked, upset and humiliated’ by Kerr’s comments.”

Kerr’s case has drawn international attention 

Narulla says, “Aside from the policy questions regarding the administration of criminal justice, the case has been prominent because of its unusual facts and Sam Kerr’s high profile. It also comes at a key cultural moment, with the global political context of backsliding on diversity, equity and inclusion.”

On November 28 last year, the CPS released a plan to “tackle racial disproportionality”. It was spurred by research commissioned by the CPS, along with the independent Disproportionality Advisory Group, which indicated that defendants from minority ethnic backgrounds were significantly more likely to be charged for a comparable offence than white British defendants. Research had already indicated this racial disproportionality in previous years.

In March 2023, the report by Baroness Louise Casey concluded the Met Police was guilty of institutional racism, misogyny and homophobia, though the Met responded that while it accepted the findings, it did not agree that it was “institutional”.

During the trial, the defence asked Kerr how it felt being with the three police officers, including PC Lovell, while giving her account of events at the station.

She responded that she initially felt relieved but soon became fearful because “they were trying to tell us that we were the ones who had done something criminal here”.

She described the nature of two of the officers’ conduct as “antagonising”, elaborating that this was demonstrated by: “Not believing us – telling us things hadn’t happened that I knew had happened, making me feel like a liar, second guessing myself.”

Kerr claimed in court that she had the case of Sarah Everard in mind while feeling trapped in the back of the taxi on the night in question. Everard was raped and murdered by Metropolitan Police officer Wayne Couzens in March 2021. According to a September 2024 report by the BBC, a rape offence is reported every hour in London, and more than 8,800 rape incidents were reported to the Metropolitan Police in 2023 – an average of 24 a day. The BBC explained that a report of sexual violence or rape was made to the Met on average every 26 and a half minutes.

With the trial now behind her, Kerr says she is committed to “getting back to the pitch”, having not played since suffering an anterior cruciate ligament injury early last year. In a statement, the UK Metropolitan Police says it will continue to support all officers who were involved in the incident.