Joe O’Brien Welcomes New Bill to Tackle Hate Crime and Hate Speech
27th October, 2022
Joe O’Brien has welcomed the publication of the Incitement to Violence or Hatred and Hate Offences Bill 2022, after Cabinet approval for the new legislation was secured on Tuesday.
The new legislation will criminalise any intentional or reckless communication or behaviour that is likely to incite violence or hatred against a person because they are associated with a protected characteristic. The penalty for this offence will be up to five years imprisonment.
It will also create new, aggravated forms of certain existing criminal offences, where those offences are motivated by hatred of a protected characteristic. These will carry an enhanced penalty and the criminal record will clearly state that the offence was a hate crime.
Welcoming the Bill, Joe O’Brien said:
“Protecting vulnerable groups through legislation on hate crimes was a key priority for the Green Party when negotiating the Programme for Government. It’s almost twenty years since I critiqued the shortcomings of the Prohibition of Incitement to Hatred Act as part of a college assignment. So, I’m really glad that this Bill will deliver on this commitment and will mean that hate crime is finally recognised in law and punished appropriately and that the voices of victims will be heard.
“This legislation will make it a specific crime to attack people on the basis of their protected characteristics, including their race, sexual orientation, or disability. These kinds of attacks are horrific for the victims but have an even broader impact by generating fear among a whole group of vulnerable people.
“Perpetrators of hate crimes sow division in our communities by targeting recognisable and vulnerable minority groups. Hate crimes instil fear in whole communities and lead to people feeling unable to engage fully in public life.”
“I’m really pleased to see this legislation moving forward, which demonstrates our commitment to a truly equal society where everyone regardless of their background can feel safe and welcomed.”
The need for new legislation to address hate speech and hate crime has been recognised for many years. The Prohibition of Incitement to Hatred Act 1989, has been widely considered as ineffective, with only about 50 prosecutions in the more than 30 years since it was enacted. The 1989 Act is being repealed and replaced with new, simpler provisions designed to be more effective in securing convictions.
The protected characteristics in the new legislation are race; colour; nationality; religion; national or ethnic origin; descent; gender; sex characteristics; sexual orientation; and disability.
The specific aggravated offences provided for in the new legislation are those which most commonly manifest as hate crimes, for example assault and criminal damage. When one of these offences is committed, and the perpetrator either demonstrates hatred of a protected characteristic while committing the offence, or is motivated by hatred of a protected characteristic, this will be a hate crime.
These behaviours, such as assault and criminal damage, are already crimes, but the hate element will lead to a higher penalty and the crime will be recorded as a hate crime. For any crime other than those expressly provided for in this new law, a judge will be able to hand down a higher sentence if there is evidence that there was a hate element to the crime.
The provisions of the new legislation have been crafted to ensure that they will capture hate speech in an online context. There has also been significant engagement between officials in the Department of Justice and the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media to ensure that the provisions dovetail with the regulatory framework for online safety proposed by the Online Safety and Media Regulation Bill. That Bill will link closely with these provisions on incitement to hatred, particularly in a social media environment, and the role that companies will play in managing hate speech on their platforms.
Joe O’Brien added:
“This Bill has been carefully constructed to protect the right to free speech while ensuring that we tackle the dangerous reality of hate speech in our society.
“There are protections for freedom of expression built into this legislation. Hate speech is not about free speech – in fact it prevents it, by shutting out vulnerable communities and making people fearful and isolated. We need to send a strong message that this kind of speech is corrosive to everyone’s free participation in public life.”
The Bill must now be passed by both the Dáil and the Seanad before it can be enacted and signed into law by the President. The Government is committed to ensuring that this happens before the end of 2022.
A motivation test for hate crime requires proof of someone’s subjective motivation for committing an offence – what was in their mind at that exact moment. However, the Minister McEntee concluded that motivation alone in proving hate crime offences can be difficult to establish and therefore might not result in a conviction. Hence, she recommended that a demonstration test of proof be included in the legislation.
A demonstration test means simply that a perpetrator demonstrates hatred towards a member of a protected group/characteristic at the time of an offence being committed.
This might involve, for example, the use of hostile or prejudiced slurs, gestures, other symbols or graffiti at the time of offending. In practice, it means that by using a demonstration test, the prosecution does not necessarily have to get inside the mind of a perpetrator to prove the crime but can use a demonstration test as an alternative method of proving a crime committed is a hate crime within the provisions of the legislation.
Statistics released by An Garda Síochána in July confirm what was learned in the public consultation. Of 448 hate crimes and hate related (non-crime) incidents reported in 2021, the most prevalent discriminatory motive was race (44%), followed by sexual orientation (15%) and nationality (14%).