Pastor McConnell judgement: “It is not the task of the criminal law to censor offensive utterances…”

So Pastor McConnell has been acquitted by the High Court along with what looks like almost a rebuke for the bringing of the case in the first place. On Twitter Alan highlighted the point the judge wished to make clear about the core ro9le of the courts in such matters:

Screen Shot 2016-01-05 at 13.23.02

The question left behind is where is the dividing line between offence and grossly offensive?

However it would never have been an offence of any description under the law had the LAD video of him (cribbed from the Church’s official recording) saying what he did say since the grossly offensive charge comes under the heading of Communications Offences’.

Whatever he says now, I suspect that the Pastor will be a little more careful of what he says in future.

But this is not the first case of alleged offence to hit to soft sands after a long bout of social media outrage and the deliberation of the DDP’s office, which at the very least suggests there is a substantial difference between public understanding and the law itself.

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  • chrisjones2

    or as the High Court previously said, I think in relation to parades, “there is no right under ECHR not to be offended”

  • Dan

    If only he’d said that Mosul was the safest city in the world under ISIS control…..

  • Ben De Hellenbacque

    If only that misguided remark of Dr Al-Wazzan had been “grossly offensive” in law. Are you trying to assert some case of political correctness gone mad? If your radar for reverse discrimination is on permanent high alert then I fear for you.

  • Ben De Hellenbacque

    Further to that, taking offence is ultimately a choice. In the true Christian tradition, pinch my bum and I’ll just turn the other cheek.

  • Chingford Man

    Where is the dividing line between the “offensive” and the “grossly offensive”? Certainly not in the Communications Act 2003 where criminal offences regarding networks and services are tagged on as an after-thought and there is no guidance as to construing “grossly offensive”.

    Why hasn’t the Director of Public Prosecutions not already resigned after his sanctioning of a debacle of a prosecution?

  • Nevin
  • chrisjones2

    If he did that every time there was a debacle where would we be

  • chrisjones2

    …if that is what turns you on, who am i to argue

  • Jag

    I think the PPS made the right decision in pursuing the case, and the Judge made the right decision in acquitting the Pastor, summing up that the words used by the Pastor were “offensive” but didn’t reach the high threshold of “grossly offensive”. The matter concludes with those in positions similar to the Pastor understanding they need to be a bit more careful with their language.

    The Pastor came across as a thoroughly decent and principled individual. I don’t think he will be repeating that sort of language again.

    I don’t see any “rebuke” in the Judge’s summing up as reported.

  • Greenflag 2

    A good rule of thumb for politicians and preachers and the like and those in the public domain is to open your mind before opening the mouth . Although some success has been achieved recently in the USA by a GOP presidential candidate who has found it can pay to keep the mind closed and the mouth wide open .

    Somehow NI seems to produce more than its fair share of the closed mind /open mouth tribe Perhaps a study could be researched on the reasons for this phenomenon?

  • Ben De Hellenbacque

    I don’t imagine it’s due to what you see as his decency & principles that will be discouraging his intemperate opinions in future.
    There’s plenty of decency & principle even dignity, intelligence and respect in this but none of it’s coming from the Pastor.

    https://youtu.be/4xYu-OaUaq0?t=264

  • Ben De Hellenbacque

    Bathos often defuses and confuses argument

  • Chingford Man

    Set aside a thoroughly disgraceful prosecution and consider the dogs that didn’t bark.

    Where was Patrick Corrigan of Amnesty International? Too busy campaigning for same sex marriage and abortion law reform? Where was the Committee on the Administration of Justice? Where was Monica McWilliams, the would-be UN Special Rapporteur? Where were other highly paid high heid yins of the NI human rights sector?

    Looking further afield, where was Shami Chakrabarti? Helena Kennedy? Michael Mansfield? Geoffrey Robertson? Cherie Blair?

    I’ll make a guess. All these heavyweight panjandrums had no interest in coming out in public support of McConnell because they’re only interested in civil liberties when there’s a soggy left wing cause at stake.

    I guess they would despise an old time Gospel preacher like McConnell. But then he wasn’t from the right minority group. Maybe he should have been a transgendered, one-legged asylum seeker from Syria.

  • Pete

    Thank goodness for a sensible decision. How utterly ridiculous it would have been to make McConnell’s statements a criminal offence.

  • Chingford Man

    What has that got to do with my questions? If you’ve nothing to say, try saying nothing.

  • Thomas Barber

    Which high court was that Chris ? but anyhoos that didn’t stop unionists demanding that a band be charged with anti protestant hate speech not long ago.

  • Chingford Man

    Put the keyboard down, pal, and check your potato crop just in case the Brits have ruined it on you.

    Anyone else inclined to answer my questions?

  • Thomas Barber

    Maybe they just didn’t support what he said Chingford Man.

  • Chingford Man

    It’s not a question of supporting what he said, but of supporting his right to say it. Is that obvious point lost on you?

  • Thomas Barber

    Regardless of what the law says Chingford Man there is not automatic right to free speech, try calling a police officer a black so and so, even though he might not be black its assumed as an insult to him or her. But if everyone was entitlled to preach what Pastor McConnell preached we would all be equal and as we both know thats not the way of the world. Im sure if it was Jews pastor McConnell was saying the same things about he’d be dragged brfore the courts and chargered with anti semitism and he wouldn’t be walking out the door unpunished.

  • Chingford Man

    “chargered with anti semitism”

    I hate to puncture your ignorance but an expression of anti-semitism by itself is not a criminal offence, although it obviously can be evidence that a different offence has been committed.

  • Thomas Barber

    Try telling some Isreali jews that. All you have to do is disagree publically with certain parts of their history

  • Thomas Barber

    By the way are you always an asshole when answering people who dont share your view of the world. Civility is a wondeful thing when you want others to understand where your coming from.

  • Chingford Man

    If you make naive and inarticulate remarks that suggest you have little knowledge of the issues involved, don’t be surprised if someone points it out to you.

    Oh and don’t refer to someone as an “asshole” and then complain about civility. You may also wish to read Slugger’s guidelines for posting.

  • Thomas Barber

    Oh I know the issues involved. A British court dismisses charges against a British hate preacher who is supported by British politicians from a religious fundementalist political party that also has a record of being anti Catholic and their religion was the enemy of those same hate preachers before Muslims came along. A court in a different part of the EU would have probably came to a different conclussion.

    “There is no need to be tolerant to the intolerant. This is
    especially important as far as freedom of expression is concerned: that freedom must not be abused to defame other groups”

  • Carlos Fleming

    NCO’s such as amnesty international would likely get involved if his right to freedom of speech was curtailed. It wasn’t. NCO’s are there when due process is threated and justice and human rights are mismanaged. Are you seriously suggesting amnesty international should get involved in every piece of the judicial process “just because” ?

  • ted hagan

    I’m glad I don’t have a son, a daughter or an in-law who is a Muslim. I would have been ashamed to look them in the eye. Northern Ireland has such a long, way to go yet. I’m proud to call myself a Christian and yet find it hard to reconcile that with the brand that ‘Pastor” McConnell preaches. Frankly, he gives me the creeps. I left Northern Ireland 20 years ago. I wish I’d left sooner.

  • Chingford Man

    Thanks very much for inadvertently proving my point. It’s not really about freedom of expression, it’s about McConnell being a fundamentalist, being a friend of the DUP. Quelle horreur!The rights and liberties of such people don’t matter. That’s what you’re trying to say, isn’t it? Otherwise why mention it?

    I’ve replied to enough tosh from you and I suggest you bail out too. Anyone who can come out in support of “There is no need to be tolerant to the intolerant” obviously doesn’t understand civil liberties.

  • Chingford Man

    Um, the episode is all about an organ of the state prosecuting McConnell over an incident when he was exercising his freedom of speech. McConnell’s conviction would have had enormous implications for free speech. That seems right up Amnesty’s street, more so than agitating for gay marriage, a cause unknown to the general public a decade ago.

  • SeaanUiNeill

    Thank you Nevin for posting the link. A careful reading of the judgement itself shows that the claims made above that Pastor McConnell has been in some manner declared as entirely “innocent” are seriously equivocal.

    McConnell may have sought to claim protection for his freedom to state what he said under articles 8 & 9 of the Convention on Human Rights, but the judgement when fully understood clearly suggests that McConnell if accurate in his claims of no intent to offend was in that case by his own admission too stupid to understand just how offensive his remarks were. The Judge clearly dismissed much of what McConnell claimed regarding his suggestion that he did not realise the offence he was causing. The final judgement was over an evaluation of the issue as to whether the remarks were “offensive” or “grossly offensive”, and absolved McConnell of criminal intent, but not of actually crudely causing generalised offence through an ignorant and indulgent approach to serious issues.

    But for those concerned to put forward the claim that there was never a case to answer here, here is a salutary reminder that what they are morally supporting is still characterised in the judgement as offensive ignorance, and perhaps they should more carefully this part of what Judge McNally has said;

    “Pastor McConnell is absolutely entitled to criticise the Islamic faith in a robust and trenchant manner but entirely absent from this 35 minute sermon is 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. On the contrary he has done nothing other than indulge in a bout of name calling. Indeed I struggle to think of anything more offensive to say about another person’s sincerely held beliefs than that those beliefs are satanical and “spawned in hell”.”

    While Judge McNally considered McConnell was in law not actually guilty of something unquestionably criminal, he is very far from suggesting that McConnell’s comments should be in any way considered as acceptable to any balanced member of a decent fair society. Luckily for McConnell we live in Northern Ireland.

  • SeaanUiNeill

    “McConnell’s conviction would have had enormous implications for free speech.” Oh CM, this is hardly something that merits such hyperbole. Perhaps if you actually read the Judgement which Nevin has kindly posted a link to below:

    “Pastor McConnell is absolutely entitled to criticise the Islamic faith in a robust and trenchant manner but entirely absent from this 35 minute sermon is 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. On the contrary he has done nothing other than indulge in a bout of name calling. Indeed I struggle to think of anything more offensive to say about another person’s sincerely held beliefs than that those beliefs are satanical and “spawned in hell”.”

    Not really something that adds much to the cause of human liberty for any person of genuine sensibility…………….

    Rather it is simply yet another instance of the mighty gap that must inevitably exist between the limitations of the law as it exists in everyday life and actual Justice.

  • Chingford Man

    It’s not for any judge to suggest what comments should be considered “acceptable to any balanced member of a decent fair society”; it is to determine whether the prosecution had proved its case. McConnell was acquitted. Whilst your analysis is interesting, it is irrelevant to the point of the case.

    Oh and if the judge is still “struggling” to find something more offensive, he had better avoid the Bible, which makes it very clear that non-believers will be thrown into the Lake of Fire.

    The judge asked, “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.” I disagree. That sort of sentiment is hardly unknown in extreme Islam (see Mehdi Hassan’s notorious “kuffir” comments) but most people would surely put up with it as the price of living in a free society.

  • Chingford Man

    Again, you are missing the point. Few people are going to study the judgment of a relatively minor judge in detail, but the mere fact of a conviction would have inhibited people from expressing opinions on Islam via electronic media that over-zealous prosecutors could easily regard as “grossly offensive”.

  • SeaanUiNeill

    The simple fact remains, making a claim that McConnell is some example of free speech for what is in effect name calling is mendaciously cashing in on a dud cheque. It is the media that is (as usual) simplifying this into some suggestion that McConnell was in any sense “innocent”, not the judgement. and the actual law here is in the judgement, not in the media (and commentator) glosses……

  • SeaanUiNeill

    As I’ve said above, law in itself is fallible and frequently, as here, supportive of actual injustices towards the vulnerable within our communities. Acquitted simply means acquitted, it does not, and should not, imply in any sense that there is any merit in what McConnell is doing. What it clearly shows is that there is no actual protection for those threatened in a legal system that freely permits McConnell to name call in a manner that might encourage the less controlled and more impressionable members of our society to possibly go out and harm perfectly innocent Muslims. This failing in the law is not something to crow about, and certainly claiming McConnell, as some above do, as some kind of champion of free speech does such willing supporters of such highly dangerous undigested invective no credit.

  • Chingford Man

    “Acquitted simply means acquitted, it does not, and should not, imply in any sense that there is any merit in what McConnell is doing.”

    For the second time, it is not the job of a court to imply anything apart from whether the defendant is guilty or not guilty.

    “What it clearly shows is that there is no actual protection for those threatened in a legal system that freely permits McConnell to name call in a manner that might encourage the less controlled and more impressionable members of our society to possibly go out and harm perfectly innocent Muslims.”

    Well, that’s the price of living in a free society. If anyone strays into incitement to hatred, prosecute them, but you can’t stop people “name calling” without causing much greater harm.

    I admire your determination to try and spin the judgment into an anti-McConnell slant but it’s not very convincing.

  • Chingford Man

    Try looking up “acquittal” in a dictionary, pal, and reflect on its meaning.

  • As Bertrand Russell once said:

    “It is an essential part of democracy that substantial groups, even majorities, should extend toleration to dissentient groups, however small and however much their sentiments may be outraged. In a democracy it is necessary that people should learn to endure having their sentiments outraged.”

    Indeed, McConnell was only acquitted because his communication was deemed not to have been “grossly offensive” by the judge. Had it been deemed “grossly offensive”, he would have been convicted. So, it’s not quite the triumph for free speech it is been portrayed as in the media, in my opinion, considering the very legislation on which the judge based his conclusion still sets out to censor and regulate expression. McConnell’s expression just wasn’t deemed to have crossed the rather unclear threshold.

    Some interesting thoughts/points along similar lines here: http://www.tfa.net/belfast-pastor-found-not-guilty-of-making-grossly-offensive-remarks/

    Here is the actual judgment: https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/SummaryJudgments/Documents/Court%20finds%20Pastor%20McConnell%20not%20guilty/j_j_Summary%20of%20judgment%20-%20DPP%20v%20James%20McConnell%205%20Jan%2016.htm

    It is a fairly short judgment, but what I find problematic is that this idea of what is “grossly offensive” is incredibly subjective and ambiguous. There is very little clarity on it anywhere.

    Some further info here: http://freethoughtblogs.com/butterfliesandwheels/2012/09/what-makes-a-message-grossly-offensive/

    The following is supposed to be instructive, from the law lords case of DPP v Collins [2006] UKHL:

    “Usages and sensitivities may change over time … there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. “The test is whether a message is couched in terms liable to cause gross offence to whom it relates.”

    Although that “advice” perhaps creates greater uncertainty and confusion than it provides clarity!

  • SeaanUiNeill

    “Well, that’s the price of living in a free society”. A completely “free” society would surely decriminalise even murder. Invoking “freedom” here is this reified fetishistic manner does not actually say anything meaningful. This is not a situation where the freedoms of all are in question, as in the protections offered to us all across the entire community from prejudiced behaviour as in the “Ashers” decision, but is the invocation of the term “freedom” to mask an unquestionable bias, where McConnell’s “freedom” to say what he said openly attacks the freedom from fear and possible violence of his Muslim fellow citizens.

    A judgement should be considered as a whole evaluation, not simply as some simplistic endorsement of someone’s actions. While the balance of guilt under particular laws is of importance, the entire body of relevant law should be carefully considered in any judgement, and in this situation the final interpretation here is simply the opinion of the particular judge, quoting a precedent from “Lord Justice Laws in the ‘Chambers’ case” regarding applying some caution regarding the criminalisation of opinion, and a few other precedents to support what is actually a quite evaluative judgement in what remains a far from clearly defined situation legally. Your suggestion that this final summing up is the only thing that needs being taken into account here can only be sustained if you choose to evade all those important grey areas that the Judge also highlights in his discussion of evidence, including significantly the suggestion that McConnell’s defence claiming that he did not seek to cause offence was highly disingenuous.

    What I’m doing is hardly “spin” but is an attempt to look at the full length judgement, rather than simply leaping to claim some kind of spurious victory for a defendant who was, in the words of the Judges summing up of evidence, simply and crudely “name calling.” “Spin” to my mind would be an avoidance in this context of the ambivalence that is clear in the judgement in order to claim some sort victory for the “freedom” of a person to act in what is clearly an aggressive and reprehensible manner towards their fellow citizens. If this is a victory of any sort, it is victory for ignorance and prejudice.

  • sadie

    Wise move. I hear so many people saying they are fed up and would love out because of the bigotery, intolerance, useless politicians. All countries have their problems but some at least have sunshine.. Anyone who wants out and can, should.

  • SeaanUiNeill

    As Daniel Collins says above:

    “what I find problematic is that this idea of what is “grossly offensive” is incredibly subjective and ambiguous.”

    I’m frequently suggesting on Slugger that acquittal is only conflated with innocence in the popular understanding of English Law which insists on a black and white verdict. I’m a great fan of the Nonproven verdict myself, as a more accurate reflection of the ambiguities of the real life situation in cases such as this.

  • Chingford Man

    The last time I heard this sort of over-analysis, it was Trimble in full-on trainspotting mode.

  • SeaanUiNeill

    Daniel, Nevin posted a link to the full judgement in his comment below. With youself, I find the terms of the judgement most “subjective and ambigious”, but cannot accept that the “freedom” to offensively “namecall’ as O’Connell did should outweigh the right of his Moslim fellow citizens to be free from the fear off what such intemporate language might unleash on them. I remmeber the way that the late Lord Bannside played with such language on the streets of Belfast against the NICRA and PD, and in so doing percipitated a steady erosion of their peaceful protest in favour of a shift to violence. McConnell’s “freedom” to offend should not be seen out of this context in a town where the undisciplined and unscrupulious have historically been all too willing to turn words into deeds.

  • SeaanUiNeill

    You can ignore what I’m saying, but its there in the judgement, even if the judge only selected part of the law lords case of DPP v Collins [2006] UKHL (I quote this as quoted in from Daniel Collins comment above):

    “Usages and sensitivities may change over time … there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. “The test is whether a message is couched in terms liable to cause gross offence to whom it relates.”

    I’d feel that McConnell’s comments easily pass this test of being grossly offensive to any Muslims who would encounter them, myself. That the judge considered McConnell’s comments “offensive” only, the very thing that forms the basis of the final judgement, is, as Daniel states “subjective” and appears to be evaluated agaisnt the vaules the judge holds himself. Accordingly it does not take into full account this percedent that would have measured offensiveness with regard to those people “to whom it relates.”

  • Chingford Man

    I’ve got better things to do than to respond to vexatious guff endlessly, except to say that the judge was clear than McConnell’s comments did not pass that test. Continue your vexation with yourself: I’ve been bored into submission.

  • SeaanUiNeill

    “McConnell’s comments did not pass that test.” Really? The comments did not offend the people “to whom it relates.” Are you referring to the test from DPP v Collins [2006]? I have not noticed many local Muslins clambering to claim that they endorse McConnell’s characterisations of Islam as “satanic”…..

    Please read the actual test properly before making so inaccurate a claim. Bored you may be, but it will not be yourself (or myself) who is in the firing line targeted by those inspired by McConnell’s right to rant. I simply cannot understand why anyone could even begin to support any person in making such dangerous and indulgent comments who may have themselves even some inherited memory of the earlier descent into promiscious violence in Belfast in the late 1960s, early 1970s. This is not a safe town in which to capriciously stir up political passions.

  • terence patrick hewett

    “For the Lord himself shall descend from heaven with a shout, with the voice of the archangel, and with the trump of God: and the dead in Christ shall rise first”

  • ted hagan

    All I can say in a plea of mitigation for ‘pastor’ McConnell, who made bigoted and ignorant remarks while managing to invoke the racism of Enoch Powell, is that having watched him perform on television he certainly doesn’t come across as the brightest candle on the cake.

  • ted hagan

    I thing it is a sad reflection on this country that McConnell has managed to turn ugly, bigoted, racist remarks into some sort of heroic crusade for free speech, when the man himself abuses the privilege. Paisley got away with it for far too long, now we have another member of the god squad doing the same thing. Hopefully the younger generation will see through some of the religious humbug that plagues what could be a fine country, and which has many good people in it.

  • ted hagan

    Tell me this. The Muslims are a small minority in this country, probably insecure, especially after McConnell’s ugly remarks. But they are a small in number; What if, theoretically, McConnell had referred to Catholics as ‘the spawn of the devil and that he wouldn’t trust them’. What would the verdict have been then I wonder; Very different I would have thought; And quite rightly so. And there would have few twitterings about freedom of speech etc etc. The law is an ass.

  • Chingford Man

    You are not making a correct analogy. McConnell referred to Islam “as a doctrine spawned in hell”, not to individual Muslims. I took the trouble to listen to the relevant excerpt. You should have done likewise.

    If McConnell or anyone else had made statements that amounted to incitement to hatred, then he should have been prosecuted for that.

    I think that people like you don’t understand free speech properly and are just disappointed that someone you detest isn’t in prison right now.

  • ted hagan

    Yes, and I heard the same explanation used by Paisley for his poisonous rantings. These people are dangerous. They abuse religion and they abuse the privilege of free speech.

  • Chingford Man

    In a free society, they can do as they like unless contrary to the law. Whether they “abuse” anything is beside the point.

  • SeaanUiNeill

    Indeed, that’s what the Judge suggests in his full judgement.

  • Reader

    ted hagan: I’m glad I don’t have a son, a daughter or an in-law who is a Muslim.
    Careful now.

  • Reader

    SeaanUiNeill: What it clearly shows is that there is no actual protection for those threatened in a legal system that freely permits McConnell to name call in a manner that might encourage the less controlled and more impressionable members of our society to possibly go out and harm perfectly innocent Muslims.
    Incitement is a different charge, and it looks like even the DPP didn’t think of that one. However, there may be a small risk from the original sermon – but surely a much greater risk from its perpetual recirculation in the LAD video linked by Mick. So it may be LAD and Mick that end up in the dock on that charge.

  • SeaanUiNeill

    When the BBC, for example, reports the criminal actions of Daesh, Reader, is this incitement? It is after all McConnell who is characterising Islam as a Satanic religion spawned in Hell, not either Mick of LAD, who are simply reporting an issue of public importance.

    The judgement is, on a few days reflection, increasingly incomprehensible to me. What differentiates something as simply “offensive” as opposed to “grossly offensive”? The Judge even himself states in his judgement “Indeed I struggle to think of anything more offensive to say about another person’s sincerely held beliefs than that those beliefs are satanical and “spawned in hell”.” If he struggles to find anything more offensive then how could what was said be demoted to an acceptable “offensive” and what would perhaps then constitute “grossly offensive” in this situation!!!

    The judge also clearly only selected a portion of the law lords case of DPP v Collins [2006] UKHL in his final summing up. The judgement in that case states:

    “Usages and sensitivities may change over time … there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. “The test is whether a message is couched in terms liable to cause gross offence to whom it relates.”

    Clearly McConnell’s comments easily pass this precedent of being grossly offensive to any Muslims (“to whom it relates”) who would encounter them. That the judge finally considered McConnell’s comments “offensive” simply reflects his own personal judgement, and it ignores the fact that the statement clearly causes gross offence to any Muslims who may encounter it. Accordingly the judgement does not take into full account this important percedent that would have properly measured offensiveness with regard to those people “to whom it relates.”

  • Reader

    Seaan Ui Neill: It is after all McConnell who is characterising Islam as a Satanic religion spawned in Hell, not either Mick of LAD, who are simply reporting an issue of public importance.
    But what makes it an issue of public importance? I think McConnell gave a sermon to a bunch of old women in hats and tweed and their surviving menfolk. I guess the congregation was very short of smackheads, drunks and swaggering thugs. So where was the risk? What was the importance?
    So; stage 2 – LAD copied and promoted the video. Outrage follows. Publicity follows. Wasn’t it at this stage that the risk (if there is any) set in?

  • Reader

    So far as I know the only case where that applies in UK law is between children and adults who are responsible for their care or education.
    Otherwise, people are equal under the law.
    So I think it is up to judges to decide the question (offensive/grossly offensive) on each occasion up until the point where an appeal takes the matter up to a higher court.

  • SeaanUiNeill

    You’ve no idea where this sort of indulgent behaviour will end, and what its effect will be. Paisley at first “gave a sermon to a bunch of old women in hats and tweed and their surviving menfolk” and we all know where the unfortunate lassitude with which he was treated led (me into exile for a start, when my grandfather’s old friend Bunting Sr started pointing me out to thugs who would act on his words). This sort of thing quickly becomes current amongst “smackheads, drunks and swaggering thugs” and the fact that it is being said in front of older “respectable” people lends the extremists a spurious respectability themselves to actually act on what is really unacceptable language. As I say below, Belfast is not a safe city for anyone to start encouraging violence with immoderate language………..

    Perhaps if someone had publicised the early rantings of the late Lord Bannside and shown decent folk what he was actually doing we would have been spared a career that appears to have been almost entirely aimed at simply displacing the old UUP establishment, but which incidentally took a terrible toll on all our lives as it accomplished this selfish end.

  • Reader

    You could try saying similar things about fundy Prods as McConnell said about fundy Muslims. Do you really think you would risk being convicted of anything?

  • flayman

    “…there is a substantial difference between public understanding and the law itself.”

    No, I think it is more accurate to say that there is a substantial misunderstanding of the law itself among many of its practitioners. Two years after the successful conclusion of Chambers v DPP, the CPS can still be observed grossly misapplying section 127 of the Communications Act 2003. Their Full Code Test is meant to conduct an evidential stage followed by a public interest stage. I can’t imagine that was done properly here. As with Chambers, they appear to have decided there was a strong public interest in some sort of prosecution and then went looking for a statute to square the circle.

  • flayman

    It is no exaggeration to say that a case like this has profound implications for free speech. It is the uncertainty about what can be publicly uttered without fearing arrest that contributes to the chilling effect. To contemplate the value of the speech in question is to misunderstand the problem, indeed to invert it. Useful, sensible speech is rarely curtailed. Speech that is considered by the majority to be unworthy is precisely that which needs the most protection. More than two years after Chambers v DPP and the CPS are still misapplying the criminal statute that is section 127 of the Communications Act 2003. Chambers v DPP was itself not the most helpful judgement, but the judge in this case made use of it and the prosecution ought to have minded it.

  • SeaanUiNeill

    I am very aware of the problem, and remember supporting Anthony Lester strongly in a discussion of this very issue one afternoon (in a private situation) where he argued that the one must not curtail freedom of speech to even the most extreme views.

    But in a situation here in the wee six where “l’homme moyen” is in the extreme minority and the intolerant “name callers” are in the ascendant you have a situation where any call for this ideal concept of freedom of speech is not in any way reciprocated by the McConnell camp, and where those triumphalists who support McConnell in this would employ any shift in their favour to suppress every other view if they could (simply look at the comments in his favour if you would doubt this). Accordingly tolerant reasonableness is fighting for its very life. I would be fully with you in a situation where freedom of speech could flourish, but if you are suggesting that is the situation here, I can only imagine that you are living somewhere else.

  • flayman

    It doesn’t matter that the people I am at the moment defending do not have the same appreciation of freedom of speech. That is often the case. It is often the case that free speech defenders must come to the aid of some very unpleasant people indeed. These guys will not succeed in suppressing the speech of others simply because we let them speak. On the contrary, letting them speak allows the views to be rebutted vigorously. Comments that you are objecting to are simply part of the vigorous debate. Suppressing the unpleasant views does not make them go away, it just pushes them underground. We may become less aware of them, less vigilant, and less practised at rebutting them. On the other hand, it is simply a matter of enormous public importance that powerful institutions such as organised religions are not placed beyond harsh criticism. And my main point is that the law is used inappropriately here, as the court did indeed find.

  • SeaanUiNeill

    “These guys will not succeed in suppressing the speech of others simply because we let them speak. On the contrary, letting them speak allows the views to be rebutted vigorously.”

    And so I would say myself in a situation where they do not have some potential control of the levers of power through support from the first minister of our banana republic. Back in 1968 when I was with the PD on the streets facing Ronnie Bunting seniors “freidkorps” I learnt that the exchange of views with those who may want to kill you shifts from words to the sort of “vigorous debate” that involves hospitalisation at best and against which a pacifist such as myself has little effective response other than to write on Slugger. You can argue until what the Blackshirts called St. Cudgel arrives, and such physical experience quickly erodes any rigid principal. There are situations where the fact that those one argues with may not “have the same appreciation of freedom of speech” can have possibly lethal consequence, and many of those who are commending this verdict here would have been alongside those who precipitated they descent into violence here in 1968, would even wish a return to that “golden age”……..

  • flayman

    I’m afraid I can only commend a verdict which does not uphold an improper prosecution. I have read the judgement and I have understood the words that were complained of. It seems unlikely to me that in the context of the sermon there would be an eruption of violence such that you warn of. Public order charges of incitement were considered but not pressed. Insufficient evidence. The prosecutor had this to say, paraphrased by the judge:

    “Context was all important in the case. When the words were looked at they showed that the defendant did not even trust good Muslims against the background of violence he was describing coming from fanatical Muslims.”

    So what? He is entitled to hold that view and to express it. It may be bigoted. That’s not a crime. You should perhaps consider the likely consequence of a conviction here of a priest delivering a sermon. If anything is likely to galvanise the followers into action, it would be that.

  • SeaanUiNeill

    You appear to be unfamiliar with the particularities of the wee six (but please put me right if this inference is inaccurate). We are in a still shaky peace after long years of polarised violence. In other circumstances, as I’ve said above, I’d agree with you, but things tend to be debated here with weaponry when they are given sufficient head of steam.

    In the wee six, being “bigoted” is actually a crime, if one uses such beliefs against others in utterance or in actions. You may not have read my other comments below, so I’d repeat the important portion:

    The judge also clearly only selected a portion of the law lords case of DPP v Collins [2006] UKHL in his final summing up. The judgement in that case states:

    “Usages and sensitivities may change over time … there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. “The test is whether a message is couched in terms liable to cause gross offence to whom it relates.”

    Clearly McConnell’s comments easily pass this precedent of being grossly offensive to any Muslims (“to whom it relates”) who would encounter them. That the judge finally considered McConnell’s comments “offensive” simply reflects his own personal judgement, and it ignores the fact that the statement clearly causes gross offence to any Muslims who may encounter it. Accordingly the judgement does not take into full account this important percedent that would have properly measured offensiveness with regard to those people “to whom it relates.”

    As regards “You should perhaps consider the likely consequence of a conviction here of a priest delivering a sermon”, my dear fellow, in what way does this in any way qualify what is being said by McConnell or how his statements should be judged? I would have thought that a more stringent evaluation of the nature of McConnell’s comments would have sent a firm message that the kind of “name calling” by authority figures ex cathedra (such as has been all too frequent in this province) was unacceptable, while the Judgement’s dilution of the clear presedent of the DPP v Collins [2006] test has rather given the go ahead to express similar thought to those who have not read the ruling in full and somehow imagine that the judgement authorises such comments.

  • flayman

    You’re right. I’m not from Northern Ireland. I think it would be a sad indictment of that territory if we needed to make a Northern Ireland exception to the Collins test of what is beyond the pale in an open, just, and multiracial society, as though Northern Ireland is not all of those things and its citizens are not basically reasonable people. I don’t agree with the judge’s opinion as to the language about Islam as satanic, etc. I do not find that this would qualify as grossly offensive on an objective reading, though I’m sure he is correct that it would probably be regarded as grossly offensive to those to whom it relates if those were the target audience. Nevertheless, the judge also correctly points out that had the pastor delivered the transcript of the very same sermon or the DVD of it by post to each and every Muslim person in all of the United Kingdom, the offence would not apply. This is where the statute on its face turns to farce.

    The Collins test has not been diluted in any way. Collins was dealing with a case for which the law was designed, involving one-to-one communication using the telephone or other electronic means. It was only in 2010 that s127 started to be used against one-to-many type communications in which people have to actively seek the messages they might be offended by. “Actively seek” means subscribe to a service where you agree to receive messages or search for them, rather than merely pick up the handset on your telephone or open an email when messages arrive. The latter is being pushed an unsolicited message because you are an addressable destination, rather than pulling a message. The original purpose of s127 has now been corrupted. This is not the type of mischief it was designed to combat. For example, it has been employed at times to prosecute people who used Twitter or Facebook to mention someone only by name and insult that person somehow, or to crack tasteless jokes. If the message actually made it to the person to whom it relates, it was only because they searched for their name or someone else directed them to it.

    I scratch my head as to why the judge felt that the first part of the complaint was untouchable. He could easily have ruled that an interference on those grounds would have been proportionate, as he clearly felt that it was regardless of the prosecution’s concession that it was protected speech. All speech is protected by default and Article 10 is always engaged. He seems to misunderstand the balancing act with Article 9, which is also qualified. His hands were not tied. He would have been wrong though, because a proper view of Collins as enhanced by Chambers and the DPP guidance would force him to examine the one-to-many context of the message (or other matter) and apply the objective test as opposed to that to whom the message relates.

    As for the violence aspect, I’m merely saying that there was no violence as a result of this, nor was it likely. If it had been likely or if it had happened in the 18 months between the events and the trial, then surely the originally pursued public order offence would have been charged. You might think that name calling by authority figures is unacceptable. That’s one view. It’s not illegal though when expressed in this general way, nor should it be.

  • SeaanUiNeill

    “I’m not from Northern Ireland. I think it would be a sad indictment of that territory if we needed to make a Northern Ireland exception to the Collins test of what is beyond the pale in an open, just, and multiracial society, as though Northern Ireland is not all of those things and its citizens are not basically reasonable people.”

    Yes, it is a sad indictment, and sadly it is evidently true, as you would notice if you were to perhaps read some of the other comment sites on the internet for here. Slugger is a notable exception, where there is a fine standard of debate, but even here threads frequently drop into violent acrimony, and you can often see comments removed by adjudication. I’ve lived in London and Los Angeles during my film career, and there is a considerable difference in how far you can trust the average man and woman to discuss matters reasonably.

    I’m working this morning, but will get back to you on the legal issues later.

    For now, I’d not put any great trust in the issue of there being “no violence as a result of this” immediately. You really need to take in the whole picture here and how it reflects a very particular history. Paisley spewed similar loathing in his “sermons” during the 1950/60s. The result was a long term build up, where it all came out in the violent opposition of paisley’s lieutenant Bunting Senior to the peaceful protest of the NICRA and the PD in the late 1960s, and the spiral to violence of what followed. You really need to understand the history of this place before suggesting that McConnell is given open license to start a hog fry in a gunpowder store. And I’d suggest that you examine the necessarily strict anti-discrimination legislation here before simply equating it with the legislation you have perhaps encountered “over the water” as your final sentences do. Those of us who are striving for a fairer society here have found that legislation is required to draw attitudes away from prejudice and this judgement has in my view set the process back. I recognise and even in part share your idealism in this, but if you wish for a genuinely libertarian society you would not be starting from a highly polarised community which has habitually defaulted to violent “solutions” for its disagreements.