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When does a heated exchange become a hate crime? The Bob Stewart appeal

Penelope Gibbs
28 Feb 2024

“Bob Stewart, for how much did you sell yourself to the Bahraini regime?” This was how the veteran Tory MP was greeted when he arrived at a Bahraini government reception in Central London in December 2022. The question was shouted by Mr Al Wadaei who was protesting against the Bahraini government’s record on democratic and human rights. He knew that Mr Stewart had accepted Bahraini government hospitality for trips to Bahrain (as a member of an all party parliamentary group). Mr Stewart was irritated by and denied the accusation of corruption and got involved in a “heated exchange”. He told Mr Al Wadaei “I hate you…go back to Bahrain…shut up, you stupid man…you’re taking money off my country. Go away”. Unfortunately Mr Stewart did not know Mr Al Wadaei was tortured in Bahrain and fears for his liberty if he returned there. Mr Al Wadaei also views Britain as his country.  

Many reading their exchange would maybe think half a dozen of one and six of the other. But a friend of Mr Al Wadaei had videoed the incident. Mr Al Wadaei watched it and complained to the police. The police felt Mr Stewart’s behaviour constituted a hate crime and he was duly prosecuted for a racially aggravated public order offence – for causing harassment, alarm and distress. Due to the police email not reaching the CPS for a few months, he was not charged until 6 months after the event and not tried until December 2023. It was a summary offence which gets dealt with in the magistrates’ court. But it was no ordinary magistrates’ court trial, with the Chief Magistrate presiding and barristers advocating (normally it would be solicitors). Mr Stewart was convicted of the offence and sentenced to pay a fine. Cue outrage from all those who hate the concept of hate crime (for in their view compromising free speech) and an appeal by Mr Stewart against his conviction. But legal aid is means tested so Mr Stewart would need to pay privately for his legal costs. A group of conservative MPs organised to crowdfund his legal costs and the money poured in – nearly £20,000 in total – a huge sum given a legally aided lawyer would get £402 to do the same case.

Fast forward to February 2024 and Mr Stewart’s appeal was heard at Southwark Crown Court. Again not a usual criminal appeal to sentence. Normally another Crown Court judge sits with two magistrates. This time a high court judge was drafted in to sit with two JPs. Judge Bennathan allowed me to live tweet. The public gallery and press bench were full and, as might be expected from the funds available, Bob Stewart had two barristers and a solicitor in court. The prosecution was represented by one barrister.

Such appeal court hearings are pretty mad. Since magistrates’ trials are not recorded and transcribed, when the conviction is appealed no-one has a verbatim record of who said what. So the whole trial is redone, with the same witnesses having to re-appear and give the same evidence. I didn’t observe Bob Stewart’s first trial but a press reporter told me that the appeal was more or less a re-run. The appeal hinged on whether this bench thought (on the basis of the evidence) that Bob Stewart had abused Sayed Al Wadaei in a racist manner and caused him harassment, alarm and distress. 

Mr Al Wadaei related how upset he was by Mr Stewart’s abuse but, in the course of questioning, it became clear that he became distressed when he watched the video of the incident rather than during the incident itself. Bob Stewart admitted that he had spoken in anger, but denied he was racist or that he had any personal animosity to Mr Al Wadaei. His honour had been impugned and he responded accordingly. He denied that his words – “you’re taking money off my country” – referred to Mr Al Wadaei scrounging off the state, rather to using the transport, educational and health facilities of Britain. In his judgment, Judge Bennathan was unconvinced by this explanation and said Mr Stewart had abused Mr Al Wadaei, but he overturned the conviction. His judgment hinged on Mr Al Wadaei’s evidence that he was upset after the incident, meaning public order was not threatened by his harassment, alarm or distress at the time.

Was this justice? Certainly the legal argument was a narrow one and the verdict looked as if it might have gone the other way had Mr Al Wadaei said he was very distressed during the “heated exchange”. And it sounds as if he was genuinely upset when he watched the video. But should Mr Stewart or anyone else who behaved as he did have been prosecuted? Mr Stewart was abusive, but he had some provocation. The incident should have been dealt with out of court whether by the police or informally; without prosecution.

Why couldn’t the police offer Mr Stewart an out of court resolution – a conditional caution or deferred prosecution? Conditional cautions involve the person who does the crime either paying compensation to the victim or doing a short rehabilitation course supervised by the police (think speeding awareness course but for racist remarks). The accused has to accept responsibility for the incident and the victim is consulted on the use of the caution. There’s no guarantee Mr Stewart would have admitted the offence but, if he had been offered and accepted a conditional caution, he would have saved himself a year of trauma, a court trial and an appeal. He may still have lost the Tory Whip (as he did on conviction) but I somewhat doubt it.

Police offer conditional cautions for a huge range of offences including domestic abuse, assaulting police and theft. But the police are more or less banned by the Crown Prosecution Service (CPS) from using conditional cautions for “hate crime” – crime where hostility is demonstrated to someone on the basis of their race, faith, disability, sexual orientation or transgender identity – even where the crime was non-violent. This effective ban on conditional cautions means that victims can’t move on swiftly, and most of those convicted of lower level hate crime are punished with a fine, which doesn’t address their behaviour at all.

Perhaps the best way of dealing with the incident would have been with a restorative justice conference, which could have been done outside the formal criminal justice system. If Mr Stewart had accepted he had upset Mr Al Wadaei, a restorative justice facilitator could have arranged for the two of them to meet and for Mr Al Wadaei to have described why he was upset. Mr Stewart could have explained why he was so troubled at being accused of taking money from Bahrain and would have learnt why Mr Al Wadaei is so passionately opposed to the Bahraini government. All this could have been done in a non-adversarial context. As it is, huge resources were spent on two trials with both parties feeling that they didn’t get justice – Mr Stewart because he felt he shouldn’t have been prosecuted in the first place and Mr Al Wadaei because the appeal found that his upset, however genuine, happened at the wrong time to fit the legal definition of the crime.

We don’t want hate in this world and the criminal justice system has a role in dealing with serious crime motivated by serious hate. But the CPS’ effective ban on resolving the lowest level of hate crime out of court doesn’t makes any sense. If people say stupid, hurtful things in the heat of the moment and use racist language, they shouldn’t get away with it. But most victims just want the person who hurts them not to do it again. And the best way of achieving that is to get that person to understand the harm they’ve caused. Forcing them to pay a magistrates’ court fine teaches them nothing.

Transcript of the exchange in question.