A recent decision in Northern Ireland, where an evangelical preacher was acquitted after being criminally charged in relation to a sermon attacking Islam, raises a number of important issues about free speech in a religious setting. 

Facts of the case

The decision in question, DPP v McConnell [2016] NIMag 1 (5 Jan 2016), was a decision of District Judge McNally in the Belfast Magistrate’s Court. The accused, Pastor James McConnell of the Whitewell Metropolitan Church in Belfast, had preached a sermon in his church on 18 May 2014 in which he said, among other things, that

•  Allah was a heathen, cruel and demon deity;
• Christians were persecuted for their faith, citing in particular a woman called Miriam (the reference seems to have been to the case of Mariam Yehya Ibrahim, who had been sentenced in the Sudan to death for apostasy at the time of the sermon, although later released in July 2014);
• concluded “These fanatical worshippers are the worshippers of the God called Allah.”

In particular, however, the prosecution focussed on the following passage taken from the sermon (grammatical and other infelicities no doubt due to the fact that this was an oral sermon later transcribed for purposes of the trial):

“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 very important feature of the case was that this sermon was apparently either “live-streamed” over the internet, or else very shortly afterwards made available for downloading. This was important because the charge laid against Pastor McConnell was under s 127(1) of the Communications Act 2003 (UK), which states that a person is guilty of an offence if he or she:

(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.

The charge here was based on some of what was said being “grossly offensive”.

What the charge laid was not about

However, it is important to note which words were, and which were not, the subject of the charge. Perhaps most people would regard the comments about the religion of Islam, and Allah, as the relevantly offensive words. But these were not the words which the prosecution relied on. As McNally DJ noted at para [2]:

Mr Russell {counsel for the prosecution} stated that whilst the last sentence was capable of being grossly offensive it was protected by Articles 9 and 10 of the Convention and the evidence in the case would proceed on that basis.

The Articles referred to are part of the European Convention on Human Rights, art 9 dealing with freedom of religion, and art 10 dealing with freedom of speech. The prosecution in effect conceded that the Pastor’s right to religious freedom allowed him to attack the religion of Islam in vigorous terms, and his right to free speech also supported this. This is a very important feature of the decision- that the public official charged with enforcing this law did not see that the law could be used to suppress strong words used in debate on religious doctrines. The concession, in my view, was correct.

However, it has to be said that the decision of the prosecutor to concede a point does not amount to a binding legal precedent. Indeed, when the decision of McNally DJ is read carefully, his Honour seems to have been somewhat unhappy that the charge did not rely directly on these words. In para [19], having described the comments about Islam being “satanic” as “easily capable of being construed as grossly offensive” he commented:

Pastor McConnell is quite happy, and indeed is quite entitled, to call upon the protection of Articles 9 and 10 for his use of these words but, in my view, has 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, as previously stated, 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.

These words leave open some encouragement for future prosecutions to be based on similar comments about Islam. McNally DJ comments in the same context about the lack of “any attempt to set out the doctrines and teachings of the Islamic faith and then to dissect them and set out in a clear and concise way the grounds upon which he takes issue with those beliefs.” With respect, while of course the calm and thorough dissection of doctrines point by point would be one way of approaching the issue, and entirely appropriate for a lecture in a theological college, it seems to set a very high bar to require such to be undertaken every time a passing point is made in a sermon on a Sunday. In any event, one may disagree strongly with the words that the Pastor used; but is it really consistent with rights of free exercise of religion and free speech to say that these things cannot be said at all in a sermon?

In Australia an analogous approach was taken at a Tribunal level in the not dissimilar case of Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, where the pastors running a seminar on Islam were found to have breached the legislation. On appeal, however, the Victorian Court of Appeal overturned the tribunal finding of “religious vilification”. In his judgment Nettle JA (as he then was) criticised the Tribunal for failing to distinguish between comments which expressed or incited hatred of Muslim persons, and comments which attacked Islamic beliefs. The latter, he said, was not prohibited by the legislation. In particular, he noted that the Tribunal’s finding that the comments of the pastors in that case were “unbalanced” was irrelevant to the question of whether they had incited hatred of Muslims. His Honour commented at [36]:

In any event, who is to say what is accurate or balanced about religious beliefs? In point of fact, the most that could ever be said is that a given point of view may diverge to a greater or lesser degree from the mainstream of generally accepted views on the subject. In my view it was calculated to lead to error for a secular tribunal to attempt to assess the theological propriety of what was asserted at the Seminar.

The McConnell case is not identical to the Catch the Fire litigation, but the post made here is still relevant. If the secular courts are to be involved in ruling on whether one believer’s critique of the doctrines of another faith are “balanced” or “even-handed” or sufficiently “clear and concise”, they will be dragged inexorably into theological debates, which it is not appropriate for them to engage in. Better far to allow robust critique to be offered and rebutted in free and open debate, rather than involving legal processes on one side or the other. (For comments on the Catch the Fire decision, see my chapter “Defamation and Vilification: Rights to Reputation, Free Speech and Freedom of Religion at Common Law and under Human Rights Laws” in Freedom of Religion under Bills of Rights (2012), and for more recent comments on anti-vilification laws “Religious Anti-Vilification Laws: Gatekeeping Freedom of Religion and Freedom of Speech in Australia” (2013).)

The words that were the subject of the charge

While the prosecution in McConnell did not rely on the attacks on Islamic doctrine, they did claim that Pastor McConnell’s statement that, in effect, Muslim people as a whole could not be trusted, was “grossly offensive” within the meaning of the Act.

On this charge McNally DJ ordered an acquittal. His Honour said that this claim was “offensive”, but did not reach the height of being “grossly offensive”. His conclusion was spelled out as follows, at paras [22[-[23]:

[22]…In coming to a conclusion I take into account the context of his comments following his expression of mistrust in Muslims to which I have referred at para 20. However, I also take into account the wider context and circumstance of him delivering a sermon wherein he was trying to communicate strong and robust beliefs that the God in which he believed was the only true God and that the worship of any other god was idolatrous.

I have also considered the proportionality of a conviction under section 127 in light of his rights under Articles 9 and 10 of the Convention.

[23]      Having considered all these matters and the particular facts of this case I have come to the conclusion that the words upon which the charges are based, whilst offensive, do not reach the high threshold required 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. Accordingly I find Pastor McConnell not guilty of both charges.

It is encouraging to see the context being taken into account, including religious freedom and free speech rights, and the clear statement that “offensive” speech alone should not be censored. (The careful note on the decision in Law and Religion UK notes that in fact the relevant words came from the decision of Laws LJ in Karsten v Wood Green Crown Court [2014] EWHC 2900 (Admin) [at 21] rather than in the Chambers decision. But the point remains valid.)

How the matter may have been resolved in Australia

How might such a case have been decided in Australia? There are two possible actions that might have been taken: one, an action based on criminal law which prohibits “offence” being caused by an electronic communication; second, an action based on so-called “religious vilification” law.

1. Causing offence by electronic communication

Under s 474.17 of the Commonwealth Criminal Code (contained in the Schedule to the Criminal Code Act 1995 (Cth)), it is a criminal offence to use a “carriage service” (a term which would include most form of electronic communication over the internet) “in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.” (emphasis added)

Given all the offensive material of every sort that can be found on the internet, it might be thought unlikely that a recording of a sermon could be judged to be such. But this provision is the electronic analogue of a similar provision, s 471.12, proscribing the causing of offence by using the post, which was the subject of the prosecution dealt with by the High Court of Australia in its decision in Monis v The Queen [2013] HCA 4 (27 February 2013). In that case Mr Monis and an accomplice had sent insensitive and highly offensive letters to the grieving relatives of Australian soldiers killed in Afghanistan. The NSW Court of Appeal had upheld Mr Monis’ conviction under s 471.12. He appealed to the High Court, arguing that a law which prohibited the mere causing of “offence” was invalid as contrary to the implied freedom of political communication found in the Australian constitution.

I have provided a detailed analysis of the Monis decision, and some others dealing with the prohibition of “offensive” speech, in the 2013 paper already noted above. In short, the result of the High Court appeal was in my view highly unsatisfactory. The court was evenly divided, 3-3, on the question of the validity of the legislation. 3 members of the court thought that the legislation was indeed invalid and went too far in penalising mere offence; the other 3 members interpreted the legislation as requiring “serious” offence or the like, and if read that way held that it was valid. As a result of the split decision the lower court ruling was upheld, and the conviction affirmed.

In my respectful option the members of the court holding that the legislation was invalid were correct. The invalidity of a law penalising mere offence alone seems clear, especially in light of a decision of the Supreme Court of Canada, Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (27 Feb 2013) handed down (coincidentally) on the same day holding that a law forbidding mere “offence” breached Charter rights of free speech and freedom of religion. (I discuss that case in my 2013 note as well).

In short, in my view a criminal charge under s 474.17 against a preacher whose internet-available sermon robustly attacked another religion should be dismissed on the basis that such a law would be constitutionally invalid. But the outcome is still in some doubt given the divided bench in the Monis decision.

2. Religious vilification

There are also laws in Australia which prohibit “vilification” on the basis of religion, and make such behaviour unlawful and subject to an action under discrimination law. Again, these laws are discussed in the 2013 paper. Three States, Queensland, Tasmania and Victoria have such provisions. The Victorian provision, s 8 of the (perhaps ironically entitled) Racial and Religious Tolerance Act 2001 (Vic), was engaged in the Catch the Fire litigation noted above.

However, in light of the ultimate appellate reversal of the trial decision in Catch the Fire, and in light of the current wording of the Victorian law, it seems that a sermon preached in a church context would not be caught by that law today. Section 11(1) of the Act contains a defence

if the person establishes that the person’s conduct was engaged in reasonably and in good faith— …  (b)  in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for—   (i)   any genuine … religious … purpose

There is also (pursuant to an amendment added after the Catch the Fire litigation) a clarification of “religious purpose”:

(2)     For the purpose of subsection (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.

Nevertheless, while it would seem likely that even a foolishly offensive preacher would be protected by this defence, some lingering doubt remains. In particular, there will be an issue as to what is required for a comment to made “reasonably and in good faith”. The best interpretation should be that it simply needs to be shown  that the remark was made as part of a genuine activity of teaching the Bible to a congregation and was sincerely believed by the person who made it. But in the notorious “Andrew Bolt” litigation, Eatock v Bolt [2011] FCA 1103, which dealt with a similar provision prohibiting “racial vilification”, s 18C of the Race Discrimination Act 1995 (Cth), a “good faith” defence failed on account of errors of fact made by the author.

Indeed, in the Catch the Fire case itself, a lack of good faith was found by the Tribunal on the basis that one of the speakers had misrepresented his credentials at one point. As Professor Rex Ahdar put it in his comment on this issue in the litigation: