“Grossly offensive” or merely “offensive”? DPP v McConnell: a note

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.

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The facts

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 [2016] 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 [2].

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” [10].

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 [10].

The judgment

DJ McNally rejected the initial contention that there was no case to answer [9]. In DPP v Collins [2006] 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 [17].

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” [18].

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” [19].

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” [19].

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'” [20].

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” [21].

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’.” [22]

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 [22].

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 [2014] 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 [2012] EWHC 2157 (Admin), in which Laws LJ did not sit].

Not guilty.

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…

Cite this article as: Frank Cranmer, "“Grossly offensive” or merely “offensive”? DPP v McConnell: a note" in Law & Religion UK, 7 January 2016, https://lawandreligionuk.com/2016/01/07/grossly-offensive-or-merely-offensive-dpp-v-mcconnell-a-note/

See also Neil Foster’s post on Law and Religion Australia: Prohibiting Offensive Sermons

14 thoughts on ““Grossly offensive” or merely “offensive”? DPP v McConnell: a note

  1. Pingback: How offensive is “offensive”? DPP v McConnell | Law & Religion UK

  2. Is this offensive?

    It seems to me that those who are devout Muslims believe that the laws governing a society must be those issued by Allah via the prophet Mohammed and interpreted by Muslim clerics. This is incompatible with the Enlightenment concept of law which sees it as a man-made construct debated, encoded and revised by a Parliament of citizens elected by citizens. This different understanding of law as between devout Muslims and the constitution of a state like the UK is certain to lead to conflict.
    Alan Rogers

  3. “Islam is heathen, Islam is satanic, Islam is a doctrine spawned in hell” sounds pretty offensive to me: it all depends what one is offended by. And as Onora O’Neill recently pointed out (and quite rightly in my view, for what that’s worth) there is no “right not to be offended” in UK law.

    It’s a question of degree: “offensive” is OK, “grossly offensive” is not. What if he’d made the same remarks about people in same-sex relationships? Or people with red hair? I think the first might have been regarded by a court as “grossly offensive” and the second as just bloody silly – but it’s extremely difficult to draw the line between what is legal and what is not.

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    • I don’t think he was “trying” at all: he just wasn’t thinking. I’m afraid it’s a common failing when preaching – and there’ve been sermons for which I must plead guilty myself.

  5. Pingback: Prohibiting Offensive Sermons | Law and Religion Australia

  6. “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…”

    That’s the moral? Why not “If you are a Crown Prosecutor and you can’t find sufficient evidence for conviction on a public order offence, don’t go looking for a communications offence to misuse on the basis of a sense of strong public interest, especially when your Full Code Test is supposed to answer the question of public interest only after the realistic prospect of a conviction has been satisfied.” But yeah, thanks for your contribution to the chilling effect.

    • Touché: that sounds like a perfectly reasonable alternative moral to my own. If what you are suggesting is that it was a poor decision by the Northern Ireland prosecutors, I entirely agree. But if my conclusion that people shouldn’t preach sermons claiming that “Enoch Powell was right” and that “Islam is heathen, Islam is satanic, Islam is a doctrine spawned in hell” contributes to a chilling effect, then I’m afraid that I must plead guilty as charged – though I feel not a shred of remorse for having said so.

      • Unfortunately it’s a double edged sword. We don’t get an opportunity to rebut the views that are not aired, so they go unchallenged. The speaker is then denied the opportunity to change his mind. The views remain; we are merely less aware of them. In short, we are all worse off. A case such as this one is dangerous to free speech because of the uncertainty it creates around what is a permissible public utterance, such that the speaker is not risking arrest and perhaps ruin. That is the chilling effect.

        • You make a perfectly fair point: the issue on which we obviously have differing opinions is the point at which an expression of opinion is so grossly offensive that it should not be allowed at all. You obviously feel that McConnell’s remarks fell short of the “grossly offensive” hurdle and so did DJ McNally, while I think they went well beyond the permissible limits of free speech. Unfortunately, it’s ultimately a matter of opinion; and that (I’ll say it before you do!) is a very shaky basis on which to found a criminal offence.

          But unless we’re going to allow complete, untrammelled free speech, however repulsive, it’s all we can do. Would you want that?

          • Freedom of speech is a qualified right of course, but its interference must be prescribed by law and proportionate to a legitimate aim. Section 127 of this Act should never have been used in this way. It is far too imprecise for this application. It was designed to combat nuisance telephone calls and was simply re-enacted through the decades without much thought to how it was gradually corrupted and overtaken. The CPS made this mess when they pulled out this statute to prosecute Paul Chambers in 2010 after terror and bomb hoax laws failed. Now they complain that they’d have to possibly charge millions of people every year. There are already plenty of laws dealing with bad speech. In my opinion, if the speech act falls short of incitement or targeted (to a person or persons) abuse or harassment, it needs to be left alone. The Malicious Communications Act could be extended to apply to the whole of the UK and that would solve most problems.

            A good critique of the current state of this law here: http://www.scl.org/site.aspx?i=ed28102

          • Also, on the issue of what is deemed grossly offensive, there is a test for this, though imperfect. DPP v Collins applied it as language which is beyond the pale of what is tolerable in a just and multiracial society. At the same time, the language must be considered within its particular circumstances and context. The language used by the pastor is, perhaps unfortunately, not beyond the pale of what is tolerable in our society. You practically said so yourself. If you must preach a sermon like this, don’t stream it over the internet. Walk into many churches and you are likely to hear language such as this. If you can imagine sitting in a pub and hearing a nearby conversation in tones not drawing attention to itself but easily overheard, and if that speech is not likely to encounter an extreme (more than rolling of the eyes and shaking of the head) reaction, then it’s not grossly offensive.

            I would say that it is not unreasonable for a Christian preacher with strong views to preach from the pulpit that Islam is evil and spawned in hell. Islam in the 21st century still teaches that apostasy is worthy of death, among other things. Not wishing to make a direct comparison between a religion and a disease, I’d nevertheless like to offer an analogy. A preacher, or anyone else, might say alcoholism is evil and spawned in hell. That is not to say that alcoholics are evil. A self-identified alcoholic may, however, find this extremely offensive if he is content with his lifestyle choice. At least it’s recognised as a choice. Since Islam teaches of its own perfection, any insult to Islam is likely to cause no small offence to even its more moderate adherents. Naturally, that includes the rejection of one’s own Muslim faith. Organised religions are massive power structures. It is a matter of enormous public importance that such power structures are not placed beyond harsh criticism.

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