Mr McConnell, a pastor at Whitewell Metropolitan Church, North Belfast, preached a sermon streamed on the internet in which he said that ‘Islam is heathen, Islam is satanic, Islam is a doctrine spawned in hell’. He had subsequently apologised on Radio Ulster. He was prosecuted under section 127(1) of the Communications Act 2003 for sending or causing to be sent by means of a public electronic communications network a message or other matter that was grossly offensive or of an indecent, obscene or menacing character. DJ McNally rejected the initial contention that there was no case to answer. The purpose of section 127(1)(a) was not to protect people from receiving objectionable messages but to prohibit the use of a publicly funded service for the transmission of communications which contravened the basic standards of society. It was for the court to determine as a question of fact whether or not a message was grossly offensive, applying the standards of an open and just multi-racial society and taking into account the context; moreover, 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.

The prosecution had conceded that, although the words used were capable of being construed as grossly offensive, they were protected under Articles 9 and 10 of the European Convention on Human Rights. Given the good character of Mr McConnell, DJ McNally accepted the evidence given on his behalf that McConnell had not set out intentionally to cause offence; however, he must have realised that there was a risk of offence being caused, and 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. On the facts, however, DJ McNally 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) 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. McConnell was found not guilty. [Frank Cranmer]