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New hate crime bill with tough sentences gets government approval

Minister McEntee said the constitutional rights of freedom of expression and of association will be respected in the new legislation.

The threshold for criminal incitement to hatred in the new offences is intent or recklessness.
The threshold for criminal incitement to hatred in the new offences is intent or recklessness.
Image: Sam Boal

NEW HATE CRIME legislation has been approved by government, which will see tougher sentences imposed.

The Criminal Justice (Hate Crime) Bill 2021 will create new, aggravated forms of certain existing criminal offences, where those offences are motivated by prejudice against such things or protected characteristics like race, colour, nationality, religion, ethnic or national origin, sexual orientation, gender or disability.

“Hate crimes tell the victim that they are not safe simply because of who they are. They send the disgusting message to victims that they and people like them are somehow lesser than the rest of us.

“These crimes are motivated by prejudice. They make victims feel afraid for their future, their friends and their families. They lead to a divided society, where whole communities can feel unsafe and angry.

“We must get tough and show victims that we will recognise the true harm of these crimes. And perpetrators will know that we are determined to stamp out prejudice and hate,” said Justice Minister Helen McEntee.

The new bill updates the 1989 Prohibition of Incitement to Hatred Act, with the inclusion of gender, including gender expression or identity, and disability, and to ensure Traveller ethnicity is recognised in the main definitions in the new law, on the same basis as other ethnicities.

The aggravated offences will generally carry an enhanced penalty, compared to the ordinary offence, and the record of any conviction for such an offence would clearly state that the offence was motivated by prejudice – that it was a hate crime.

For example, assault aggravated by prejudice will be a different and more serious offence to ordinary assault, harassment aggravated by prejudice will be a separate and more serious offence to ordinary harassment.

The person will be charged with the new offence from the outset, will be prosecuted for that specific new offence, and if they are convicted, the record of their conviction will reflect that their offence was a hate crime.

The kinds of crimes which will become aggravated offences under the Bill will include:

  • Assault
  • Coercion
  • Harassment
  • Criminal damage
  • Threat to kill or cause serious harm, endangerment, and other offences

The new offences also carry a provision for an alternative verdict, where the ‘hate’ element of the offence has not been proven.

In such cases, the person can be found guilty of the ordinary version of the offence, rather than the aggravated version.

“Creating these new offences will mean that a crime can be investigated as a potential hate crime by Gardaí, and evidence of the hate element can be presented in court.

“Where the jury finds that the crime was a hate crime based on the evidence, and convicts the person of a hate crime, the enhanced penalty for the new offence will be available to the judge at sentencing.

“Where the jury finds that the hate element is not proven, they will still be able to convict the person of the ordinary form of the offence,” said McEntee.

For other offences, where a specific, hate aggravated form of the offence has not been created, but where the court finds the crime was motivated by prejudice, then prejudice must be considered as an aggravated factor at sentencing. This must also be placed on the formal record.

Minister McEntee said:

“The nature of the crimes will be properly recorded and taken into account so we have accurate data to inform our wider responses. Offenders will also be managed appropriately, and perpetrators will know that their crimes will be reported, investigated and prosecuted, which is the most effective form of deterrence.”

New offences of incitement to hatred, which are clearer and simpler than those in the 1989 Prohibition of Incitement to Hatred Act, will also be included in the new Bill.

These offences cover inciting hatred against a person or persons because they are associated with a protected characteristic, and also disseminating or distributing material inciting hatred.

The threshold for criminal incitement to hatred in the new offences is intent or recklessness.

The minister said it has been set deliberately high to avoid some of the pitfalls we have seen elsewhere, stating that this is not about criminalising giving offence, it’s about hate speech that could lead to harm and illegal discrimination

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This means a person must either have deliberately set out to incite hatred, or at the very least have considered whether what they were doing would incite hatred, concluded that it was significantly likely, and decided to press ahead anyway.

Minister McEntee said the constitutional rights of freedom of expression and of association will be respected in the new legislation.

“This legislation will be proportionate, specific, and clear. The offences will be capable of being proven beyond reasonable doubt and will be absolutely clear as to what constitutes criminal hate speech.

“The legislation we are working on will be evidence based, while respecting the vital constitutional right to freedom of expression and association.”

All legislative proposals are developed and put forward bearing in mind the provisions of the Constitution and our human rights obligations including those contained in the European Convention on Human Rights Act 2003, she said.

The right to freedom of expression will therefore be fully considered in the development and drafting of any new legislation by the Office of the Attorney General, she added.

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