The recent acquittal in the Magistrates’ Court of the Evangelist Minister, Pastor James McConnell, who branded Islam ‘heathen’, ‘satanic’ and ‘spawned in hell’ has gripped the Northern Ireland public as well as onlookers worldwide. The Belfast based Pastor, branded by some as a ‘fire and brimstone’ preacher, voluntarily attended a police station for interview in June 2014 initially in relation to potential Public Order offences.
However, the case was brought under section 127(1)(a) and section 127(1)(b) of the Communications Act 2003 and involved the aforementioned remarks which the Pastor made to his congregation at Whitewell Metropolitan Church, Belfast on 18th May 2014. The sermon stirred an uneasy public debate regarding freedom of expression in the traditionally conservative Northern Ireland and the controversy soon led to an appearance on locally broadcast ‘The Nolan Show’ hosted by Stephen Nolan (evidence of which was played to the court).
However, as is so often the case, the press have somewhat misunderstood the crux of the prosecution case and the ultimate reasons for the acquittal. As the written judgment (extremely rare for the Magistrates’ Court) clearly explains, the combined usage of the phrases including ‘heathen’, ‘satanic’, ‘spawned in hell’ were protected by the defendant’s rights to freedom of thought, conscience and religion and freedom of expression under Articles 9 and 10 of the Convention. The District Judge was never in a position to convict the defendant for these remarks but instead they provided a context to the remainder of the sermon which contained an explicit admission that he did not trust a single Muslim:
“Now some say there are good Moslems in Britain that may be so but I don’t trust them.”
It was, as the prosecution put it, the characterisation of the followers of an entire religion in a stereotypical way that was potentially ‘grossly offensive’ and the court was then required to decide whether the remarks made regarding the mistrust of Muslims amounted to that. As the District Judge recognised, the House of Lords in Director of Public Prosecution-v-Collins  1 WLR clarified that this is a matter of fact for the court applying the standards of an open and just multiracial society, taking into account the context of the words and all relevant circumstances. Echoing the words of Lord Bingham, the District Judge reminded himself that a useful barometer in this exercise is to ask if the defendant used language which was “BEYOND THE PALE of what is tolerable in our society”?
It was held that the words upon which the charges were based, whilst offensive, did not reach the high threshold required of being “grossly offensive”. Whilst this is Northern Irish case law from the lowest criminal court, it mirrors the reality of jurisprudence from England and Wales that ‘grossly offensive’ can be a difficult hurdle for prosecutors to surmount. Indeed the CPS guidelines stress this and recognise that a communication has to be more than simply offensive regardless of whether it is in bad taste, controversial or unpopular.
The case attracted a huge amount of media attention and a number of politicians chipped in by saying that the prosecuting authorities face ‘serious questions’ about why the case ever ended up in court with some describing it as an ‘unnecessary and vindictive prosecution’. The Director of the Public Prosecution Service (Northern Ireland equivalent of the CPS), Barra McGrory, staunchly defended the decision to prosecute and publicly stated that his office is increasingly asked to consider cases involving the misuse of the internet to cause offence. If that is the case then the DPP v McConnell case is likely to prove instructive as to how further prosecutions will be dealt with.
John Taggart BL
3rd six pupil, 33 Bedford Row