In R v XY and AB, Benjamin Waidhofer was instructed by Fadi Daoud at Lawrence & Co CDS LLP to defend two individuals charged with racially aggravated offending. The prosecution case was that two individuals of pensionable age had committed the following offences:

1. Racially aggravated intentionally, harassment, alarm or distress, contrary to section 31(b) of the Crime and Disorder Act 1998 (the ‘racially aggravated’ version of an offence contrary to section 4A of the Public Order Act 1986); and
2. Racially aggravated common assault, contrary to section 29(1)(c) of the Crime and Disorder Act 1998 (the ‘racially aggravated’ version of an offence of common assault).

The complainant, a much younger woman who was not of Palestinian descent but who described herself as having ‘a lot of friends who are Palestinian’, wore a keffiyeh/keffiyah whilst walking on the Old Brompton Road.

During a heated exchange between the complainant and the defendants which resulted in direct physical contact between them - including whilst the complainant was stood in the doorway of the defendants’ home address - the defendants repeatedly called the complainant a ‘terrorist’, ‘scum’ and an ‘anti-semite’.

Benjamin Waidhofer, pursuing an application to dismiss all the allegations made against XY and AB, set out in detailed submissions why the keffiyeh could not properly be described as a symbol of national or ethnic Palestinian origin, highlighting:

1. a keffiyeh – if anything - appeared to be of regional rather than national identity – in accordance with the definition of a keffiyeh in Kahraman v Turkey (2020) 70 EHRR 31;
2. applying the ratio of PWR v DPP [2022] UKSC 2, [2022] 1 WLR 789, the wearing of a keffiyeh demonstrated support for a proscribed terrorist organisation namely Hamas rather than Palestinians; and
3. the wearing of a keffiyeh was reported as being capable of support for a proscribed terrorist organisation, namely Palestine Action rather than Palestinians, pursuant to section 13 of the Terrorism Act 2000 which prohibits the wearing of an item of clothing in such a way or in such circumstances as to arouse reasonable suspicion that the wearer is a member or supporter of a proscribed (terrorist) organisation.

In the course of a detailed and carefully reasoned judgment, the Honorary Recorder of the Royal Borough of Kensington and Chelsea acceded to the application and dismissed each and every allegation against the defendants.

Whilst the learned Judge ruled that the wearing of a Keffiyeh could be capable of demonstrating a degree of support for those with Palestinian links, on the facts of the case before the Court the wearing of a keffiyeh was held to not be a specific identifier of racial or religious group membership.  The learned Judge continued to rule that some individuals may wear a keffiyeh as a fashion statement or souvenir, and accepted that the wearing of a keffiyeh could also be associated with terrorist activity.

The learned Judge ruled that the hostility of both defendants was not directed at Palestinians but at terrorists, meaning that a jury properly directed could not convict either defendant of any offence alleged against them.

The Honorary Recorder’s ruling brought an end to the entire prosecution.

Benjamin Waidhofer is frequently sought out to advise upon the most high-profile cases of considerable factual and legal complexity which straddle the criminal/civil jurisdiction.  He is ranked as a leading junior in both Chambers & Partners and the Legal 500.  He specialises in representing both private individuals and corporations facing allegations or investigation for substantial dishonesty or money laundering and he is often sought ought to advise upon, and thereafter conduct, private and state funded prosecutions.  Any queries about this matter or any other ought to be addressed to .