The Government has approved the publication of new legislation to combat hate crime and hate speech, which is expected to become law by the end of this year.
The new legislation will criminalise any intentional or reckless communication or behaviour that is likely to incite violence or hatred against a person or persons because they are associated with a protected characteristic. The penalty for this offence will be up to five years’ imprisonment.
The Bill will add gender, including gender expression and identity, as well as disability to a list of “protected characteristics” which already include race, colour, nationality, religion, ethnicity or national origin and sexual orientation. Ministers were told the protected characteristics are being expanded based on best practice internationally. In the case of gender and sex characteristics, this was to reflect the experiences of certain groups of people targeted for hate crime.
A person who seeks to incite hatred against a person or group with one of these characteristics may be guilty of an offence which could carry a penalty of up to five years in prison. The new legislation will repeal the previous incitement to hatred laws and is intended to make prosecutions easier.
However, the bar for a prosecution remains high. A defendant must have deliberately intended to incite hatred or violence against a person on account of their protected characteristic and there are defences for a reasonable and genuine contribution to literary, artistic, political, scientific or academic debates. Furthermore, the Bill also includes a general provision to protect freedom of expression which clarifies that a “communication” will not be taken to incite violence or hatred solely on the basis that it involves discussion or criticism of matters related to one of the listed protected characteristics.
Justice Minister McEntee said, “We are all horrified when we hear of homophobic, racist, and other hateful incidents in our country. While these repulsive acts of violence and abuse against innocent people have been extensively reported on, we know that some people go about their lives constantly in fear of abuse simply because of who they are.
“Although it is a small minority of individuals carrying out these reprehensible acts and spouting this abuse, there is a clear desire from the public that these individuals need to be dealt with in the appropriate way.
“This Bill provides separately for hate crime and for hate speech, but on the basis of the same protected characteristics.
“All provisions throughout the Bill have been carefully developed to ensure it is victim-centred and effective in securing convictions where serious crimes are committed, and the legislation follows extensive public consultation and research.”
The new legislation will more clearly define the types of communication or conduct that might incite violence or hatred for hate speech and hate crime, with the Bill set to create an offence of the condoning, denial or gross trivialisation of genocide and war crime with Ministers told that this includes Holocaust denial.
Ms McEntee intends to include a “demonstration test” in the Bill, where guilt can be established if the perpetrator uses, for example, racial language or other evidence of hate against the victim. A demonstration test hinges on a perpetrator showing hostility towards someone with a “protected characteristic” at the time of an offence being committed. The Cabinet was told this could include the use of hostile or prejudiced slurs, gestures, other symbols or graffiti.
Minister McEntee added, “The protected characteristics for this Bill are further reaching than those in the 1989 Act. These are defined in line with international best practice and are also in line with the Equality Acts.
“They were chosen following extensive public consultation where vulnerable and minority communities shared the characteristics which are most commonly targeted.
“The new offences will allow for the ‘hate criminal’ label to follow an offender in court, in garda vetting, and so on, and the data gathered will give a fuller picture on the prevalence of different kinds of hate incidents in Ireland.”
Separately, there will be safeguards built into the new legislation where a perpetrator could still be convicted of the “ordinary” or original form of the offence if there is not enough evidence to prove the hate element. There will also be a new separate and lesser offence of preparation or possession of material that is likely to incite violence or hatred. This will also apply to people who create content that would incite violence but have not yet communicated it publicly.
The Bill was developed following a public consultation process which drew around 4,000 responses. The Department of Justice then engaged with academics and experts before bringing the details to Cabinet.
NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email email@example.com.