NI Judge acquits Pastor of “gross offence” against Muslims
17 February 2016
DPP v McConnell [2016] NIMag (5 January 2016)
Silence is the language of God, all else is poor translation.
(Jalāl ad-Dīn Muhammad Rūmī , 13th Century Persian Islamic scholar and poet)
These words were the last in the ruling by DJ McNally in the Belfast county court, acquitting Pastor McConnell of grossly offending Muslims in a sermon that had been delivered in church but also transmitted over the internet. The Pastor had declared from the pulpit the there were more and more Muslims “putting the Koran’s hatred of Christians and Jews alike into practice”, and the sermon had continued in a similar vein.
The arguments before the Court
The case for the prosecution was based on an address from the defendant to his congregation at the Whitewell Metropolitan Church on 18th May 2014. Pastor McConnell referred to Allah as a heathen, cruel and demon deity. He told of Christians being persecuted for their faith and concluded “These fanatical worshippers are the worshippers of the God called Allah”. The sermon was transmitted via the internet, and the defendant was charged under the Communications Act 2003 with having sent a “grossly offensive” message.
The prosecution accepted that not all his words had been grossly offensive but part of the context in the development of a sermon. They further accepted that the defendant was entitled to describe Allah as a cruel, heathen and demonic deity in the course of a sermon and that such views were protected by Article 9 and Article 10 of the Convention. However, the focus of the prosecution’s case was the defendant’s reference to Enoch Powell’s “rivers of blood” speech in relation to the current Muslim population in Britain, and the description of Islam being a “doctrine spawned in hell”.
By characterising the followers of an entire religion in a stereotypical way, claimed the prosecution, the defendant had been grossly offensive and his words were not protected by being emitted from the pulpit.
The defendant had been interviewed under Northern Ireland’s public order legislation but had not been charged with any offence thereunder. Pastor McConnell gave evidence as to his background and stated he became a Christian at the age of 8 and had been a full time preacher for 60 years. He belongs to the Pentecostal Evangelical Protestant tradition. He numbers among his congregation Protestants, Catholics and Muslims. His church finances missions in Kenya and Ethiopia, and evidence of his good character was given by a manager of a mission in Kenya. The judge accepted that this weighed in the balance against the charge of gross offence; the defendant had translated his Christian beliefs into actions “which have benefitted many people in this community and in Kenya and in Ethiopia”.
The Judge’s Ruling
The defendant was acquitted.
The section under which the pastor was charged (section 127 of the 2003 Communications Act) had not been designed to protect people against receipt of unsolicited messages which they may find seriously objectionable but to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene 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 N.I.
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”
The Handyside freedom of expression test, as applied by Lord Bingham in Director of Public Prosecution v Collins [2006], was whether the defendant, in exercising his right to say things or express opinions which offended, shocked or disturbed one or more sectors of the population, use language which was “BEYOND THE PALE” of what was intolerable in our society. On this basis, the judge concluded that the words upon which the charges were based, while offensive, did not reach the high threshold of being ‘grossly offensive’”.
I find myself in agreement with Lord Justice Laws in the “Chambers” case when he said 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.
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Matt, in response to your specific question (does this fall within s127(4)), the answer is “no”.
The communications protected by the broadcast exception are (per s401):
(a) a television programme service;
(b) the public teletext service;
(c) an additional television service;
(d) a digital additional television service;
(e) a radio programme service; or
(f) a sound service provided by the BBC;
None of those are relevant here.
District Judge McNally’s Judgment:
https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2016/%5B2016%5D%20NIMag%201/j_j_2016NIMag1Final.htm
Silence the language of God? Silence is the language of fraud and deception more than the Language of God. Silence like sound (of voice or action or inaction) has its place but accountability requires us to speak out or act. And that’s my judgement on Silence. It is also my opinion or judgement that; The Orders made to silence people are not and can never be in the public interest. Time and time again these attempts to silence have the opposite effect. for every action there is an equal and opposite reaction, sometimes lies dormant but not forever.
Nothing that I have read reported as to the reasons for the verdict, justifies what actually appears to have happened: the prosecution case was heard; the defence argued that there was no case to answer, using very much the arguments that the judge eventually used to justify acquitting the accused; but that submission was rejected; the defence was made to present a defence case; there was no defence case, other than that there really was not case to answer.
The reserved judgment eventually handed down (judging by the press reports and this), which I have not yet found online, appears to be one that could have been handed down at the end of the prosecution case, without putting any defence witness to the trouble of giving evidence.
Justice delayed, by rejecting “no case to answer”, demanding a defence case be put, and then giving a verdict that is based entirely on the undisputed facts, effectively retrospectively accepting the “no case to answer” submission rejected when it was made, is justice denied.
This was, through and through, a political show trial.
Either that, or this verdict is of no comfort to anybody publicly sceptical of the claims of Mohammed and Mohammedans, who hasn’t got references from (say) Ethiopa or Kenya, about his belonging to a church that has (for example) helped out a few widows and orphans.
In this specific case, does the act in question not actually benefit from the broadcast exclusion in the Communications Act 2003? I complained to the CPS early on in the Paul Chambers case that the broadcast of Jerry Springer the Opera by the BBC might have been caught by this provision, though that was before I knew about the broadcast exclusion. How ridiculous to disregard that here. The worst abuse of this law by prosecutors that I’ve heard of. I can only conclude that the CPS are still putting the public interest stage before the evidential stage of their Full Code Test and shoe-horning charges that should not apply. This is not a stretch of the imagination. The CPS actually believed (and later argued) that s127 was a crime of strict liability when they charged Paul Chambers.