Rare is the day when the lowly District Judge sitting in the Magistrates’ Court gets the distinction of having one of his judgments reported. Kudos then to District Judge McNally for his thought-provoking decision on hate speech in the Northern Irish case of DPP v McConnell.

The case concerned a sermon by evangelical Protestant preacher James McConnell in which he heavily criticised Islam. Footage of the sermon appeared on the Internet. McConnell was charged under section 127(1) of the Communications Act 2003 for sending (or causing to be sent) a message or material through the Internet that is “grossly offensive or of an indecent, obscene or menacing character”.

In his sermon, McConnell had stated that “cells of Moslems” existed in Britain in a manner akin to cells of Irish republican terrorists of a generation ago. He also said that “Islam is heathen, Islam is satanic, Islam is a doctrine spawned in hell.” Judge McNally accepted that, although grossly offensive, this last statement was protected by McConnell’s Article 9 and 10 rights. Rather, the judgment centred on the statement that McConnell did not trust a single Muslim (§19).

Judge McNally (§22) followed Lord Bingham’s view in DPP v Collins that ‘grossly offensive’ required something “beyond the pale of what is tolerable in our society”, thus preserving the right to “express opinions that offend, shock or disturb the state or any section of the population” (per former Director of Public Prosecutions Sir Keir Starmer). The finding that the statement — although offensive — was not grossly so, is correct and consistent with the generally robust approach taken by appellate courts in the UK to at least some ‘hate speech’ offences. For instance, in DPP v Chambers, a conviction for a tasteless joke about blowing up an airport in retribution for flight cancellations was overturned by the Divisional Court because the message was clearly not of a “menacing character”.

Cases like Chambers reflect the difficulties courts and prosecutors face in interpreting terms as open-textured as ‘menacing’ or ‘grossly offensive’, leading to decisions that on occasion stretch credulity to the limit. In India, the Supreme Court in Shreya Singhal v Union of India, struck down the almost identical section 66A of the Information Technology Act 2000 for unconstitutionality. Interestingly, the Indian Supreme Court looked closely at Collins and Chambers and concluded that: “If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as ‘grossly offensive’ or ‘menacing’ are so vague that there is no manageable standard by which a person can be said to have committed an offence”.

The ambiguity of “grossly offensive” is exacerbated when one considers two further troubling features of the offence under section 127(1). First, it attracts serious criminal law sanctions, punishable by a maximum sentence of 6 months’ imprisonment or a potentially unlimited fine. Second, as noted in Collins, the purpose of the section was not to protect people from unsolicited and objectionable messages, but to prohibit the use of a public service “for the transmission of communications which contravene the basic standards of society”. The Communications Act is the latest iteration of legislation that originally concerned the Post Office, now Royal Mail, which until 1969 was a government department. Collins made it clear that the actus reus of the offence was complete upon sending the message, with no requirement that the message be received. This might have been acceptable in an era where the sending of grossly offensive messages was akin to the abuse of a publicly funded service, but its propriety is doubtful in the age of private communications service providers. Furthermore, English law already recognises — under section 1 of the Malicious Communications Act 1988 (MCA) — the offence of sending communications with intent to cause distress or anxiety.

Consequently, one may draw a distinction between section 1 of the MCA, which criminalises addressing something grossly offensive to a person, and section 127 Communications Act, which criminalises putting grossly offensive things ‘out in the ether’ regardless of any actual harm caused. The latter offence potentially permits the state to censor ideas, which is inimical to the values of an open society. One might therefore ask whether we should follow the Indian example and repeal section 127.