Earlier this week we posted a brief note on Pastor James McConnell’s acquittal on charges under the Communications Act 2003 in respect of a sermon broadcast on the Internet: what follows is based on the judgment.
Mr McConnell, a Pastor at Whitewell Metropolitan Church, preached a sermon in which he said, inter alia:
“Today we see powerful evidence that more and more Moslems [sic] are putting the Koran’s hatred of Christians and Jews alike into practice. Now people say there are good Moslems in Britain that may be so but I don’t trust them, Enoch Powell was right and he lost his career because of it, Enoch Powell was a prophet and he told us that blood would flow in the streets and it has happened.
Fifteen years ago Britain was concerned of IRA cells, right throughout the nation they done a deal with the IRA because they were frightened of being bombed, today a new evil has arisen, there are cells of Moslems right throughout Britain, can I hear an Amen
Right throughout Britain and this nation is going to enter a great tribulation and a great trial. To judge by some of what I have heard in the past few months you would think that Islam was a little more than a variation of Christianity and Judaism: not so. Islam’s ideas about God about humanity, about salvation are vastly different from the teaching of the Holy Scriptures. Islam is heathen, Islam is satanic, Islam is a doctrine spawned in hell.”
A DVD was made of the entire service at the Whitewell Metropolitan Church and the sermon was transmitted on the Internet.
Section 127(1) of the Communications Act 2003 states that a person is guilty of an offence if he (a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) causes any such message or matter to be so sent. In DPP v James McConnell  NIMag 1 he was charged that on a date unknown between 17 May 2014 and 22 May 2014 he had (i) sent by means of a public electronic communications network a message or other matter that was grossly offensive, contrary to section 127(1)(a) of the Communications Act 2003 and/or (ii) caused to be sent by means of a public electronic communications network a message or other matter that was grossly offensive, contrary to section 127(1)(b) of that Act .
On being interviewed on Radio Ulster McConnell had apologised to any Muslim in Belfast who was offended:
“It was a sincere apology but he was not apologising for the Gospel. When he said that Islam was satanic, heathen and spawned in hell he was not being gratuitously offensive. He was attacking the doctrine and theology of Islam. His view was that Islam was satanic and hellish but it never entered his head to harm any Muslim when he spoke those words. He lived in a country of free speech and he had a right to comment on other religions just as others had a right to attack him and his beliefs” .
In cross-examination he had expressed regret that he did not realise that good Muslim people would be hurt. The reason why he did not trust the majority of Muslims was because they followed sharia .
DJ McNally rejected the initial contention that there was no case to answer . In DPP v Collins  UKHL 40 the House of Lords had concluded that although section 127(1)(a) interfered with the right to freedom of expression under Article 10 ECHR it went no further than was necessary in a democratic society to achieve the legitimate aim of preventing the use of the public electronics communications network for attacking the reputation and rights of others. On the basis of Lord Bingham’s judgment in Collins there were several principles in play:
(i) The purpose of section 127(1)(a) was not to protect people from receiving unsolicited messages which they might find seriously objectionable but to prohibit the use of a publicly-funded service for the transmission of communications which contravened the basic standards of society: “The defendant would not be guilty of an offence under this section if the service had not been transmitted on the Internet, nor indeed, if he had posted a copy of his sermon to every Muslim living in Northern Ireland”;
(ii) The offence was committed when the message is sent: “It does not matter if the message is never received or if the recipient of the message is, or is not, offended by the message”;
(iii) It was for the court to determine as a question of fact whether or not a message was “grossly offensive”;
(iv) In so doing the Court had to apply the standards of an open and just multiracial society, taking into account the context of the words and all relevant circumstances; and
(v) The sender of the message had to have intended to insult those to whom the message related or to have recognised that there was a risk of so doing .
On that basis:
“(A) Did Pastor McConnell send a message which was offensive? If ‘no’ I must acquit him.
(B) If ‘yes’ was the message grossly offensive? If ‘no’ I must acquit him.
(C) If ‘yes’ did he intend the message to be grossly offensive to the Muslim community and those who follow the Islamic faith? If ‘yes’ I must convict him of the offence.
(D) If ‘no’ must he have realised there was a risk of grossly offending the Muslim community? If ‘yes’ he is guilty of the offence and if ‘no’ he is not guilty” .
The prosecution had conceded that, though McConnell’s words were capable of being construed as grossly offensive, they were protected by his rights under Articles 9 and 10 ECHR. DJ McNally agreed that the words were easily capable of being construed as grossly offensive:
“What if a Muslim had preached ‘Christianity is heathen, Christianity is satanic, Jesus Christ was not the son of God but spawned in hell’? I venture to say that there would be such a tornado of protest about this which would have made the protests about what Pastor McConnell said look like an April shower” .
McConnell was entitled to call upon the protection of Articles 9 and 10; but he had failed to recognise his responsibilities and the rights of the Muslim community under the Articles:
“Whilst I cannot convict him for describing Islam as heathen and satanic in light of … the concession by the prosecution that these words are protected by his rights under Articles 9 and 10 it is within the context of the above that I will now go on to consider the section on his mistrust of Muslims upon which the charges he faces are based” .
Given his good character, DJ McNally was prepared to accept the evidence given on his behalf that McConnell did not set out intentionally to cause offence:
“In my view Pastor McConnell’s mindset was that he was preaching to the converted in the form of his own congregation and like-minded people who were listening in to his service rather than preaching to the worldwide Internet. His passion and enthusiasm for his subject caused him to, so to speak, ‘lose the run of himself'” .
On either an objective or subjective test he must have realised that there was a risk of offence being caused and, unfortunately, ignored it: if he had set out in a clear and precise way why sharia law was repugnant to him “he could have saved himself a lot of trouble” .
As to whether or not the words complained of were “grossly offensive”, in drawing up guidelines for the Crown Prosecution Service the then DPP for England and Wales, Keir Starmer, had recognised the difficulty of the test when he said:
“The distinction between ‘offensive’ and ‘grossly offensive’ is an important one and not easily made. Context and circumstances are highly relevant and, as the European Court of Human Rights observed in the case of Handyside v UK, the right to freedom of expression includes the right to say things or express opinions ‘that offend, shock or disturb the state or any section of the population’.” 
DJ McNally adopted the test used by Lord Bingham in Collins [at 12] of whether or not the language used was “beyond the pale of what is tolerable in our society” and took into account the proportionality of a conviction under section 127 in light of McConnell’s rights under Articles 9 and 10 ECHR .
On the facts, he concluded that the words upon which the charges were based, though offensive, did not reach the high threshold required of being “grossly offensive”. He agreed with Laws LJ in Karsten v Wood Green Crown Court  EWHC 2900 (Admin) [at 21] that “the courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive. It is not the task of the criminal law to censor offensive utterances” [23: though in the uncorrected judgment the quotation is misattributed to Chambers v DPP  EWHC 2157 (Admin), in which Laws LJ did not sit].
And the moral of the story is…
… if you must preach that kind of sermon, don’t stream it on the Internet. But, better still, don’t preach it at all…
See also Neil Foster’s post on Law and Religion Australia: Prohibiting Offensive Sermons