The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill will introduce new ‘hate crime’ offences and expand the categories of person protected in Irish law from incitement to hatred.
The legislation has drawn notice from unusual quarters through the global reach of social media: Donald Trump jnr, son of the former US president, has described the Bill as “insane”, while Elon Musk, the billionaire owner of Twitter, has tweeted that the proposed legislation is “very concerning”.
Introduced last year by Minister for Justice Helen McEntee, the Bill provides for new public order, criminal damage and non-fatal injuries crimes that are “aggravated by hatred” towards a person or group with “protected characteristics”. It was passed by the Dáil last week and is likely to become law later this year, as it is currently being steered through the Oireachtas by Simon Harris who is standing in for Ms McEntee while she is on maternity leave.
Those convicted of these crimes will face more punitive sanctions than people convicted of existing assault, criminal damage and non-fatal assault offences, where hatred is not a defining feature of the offence. As the law stands, a person convicted of these crimes can have their motivation considered as an aggravating factor when a judge is considering the appropriate sentence. But the new legislation will introduce specific hate crime provisions.
It will also criminalise the possession of material produced with a view to it being shared if that material would incite hatred towards people with “protected characteristics”. It will not be necessary for the material to be actually disseminated. Also, the possession and the dissemination – including online – of such material while being “reckless” as to its possibility for inciting hatred can lead to a conviction.
The Bill introduces a new offence of condoning, denying, or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace.
It also includes measures designed to protect freedom of expression, including in relation to discussion and criticism of matters relating to a protected characteristic.
The new law will replace the 1989 Prohibition of Incitement to Hatred Act, which targeted the incitement of hatred on the grounds of race, colour, nationality, religion, ethnic or national origin, membership of the Travelling community, and sexual orientation.
The new Bill adds disability, descent, sex characteristics, and gender (including gender expression or gender identity) to the list of “protected characteristics”. It does not list membership of the Travelling community which is covered by ethnic or national origin.
Descent means people who descend from people who could be identified by certain characteristics (such as race or colour), but where all those characteristics no longer necessarily still exist.
Sex characteristics are defined as “the physical and biological features of a person relating to sex” and would include such categories as intersex.
One of the more controversial aspects of the proposed legislation concerns the issue of motivation and demonstration. The Bill refers to crimes where “at the time of committing the offence, or immediately before or after doing so, the person demonstrates hatred towards the victim”, with the victim being a person with one of the protected characteristics.
During the consideration of the Bill in the Dáil last month, deputies Paul Murphy of People Before Profit, Sinn Féin’s Pa Daly, Aodhán Ó Ríordáin of Labour, Independent Mattie McGrath, and Fianna Fáil’s Jim O’Callaghan all mentioned the issue of “demonstration”, with Mr Daly giving an example of what he was concerned about.
“The danger is that if somebody is convicted in a situation where insults could have been thrown on both sides, but some are protected characteristics and others are not, then two people could be charged arising from the same incident,” he said.
“One person could be charged with a regular public order offence and the other person, who may or may not have started the row, could be charged with a hate crime. They could both be convicted, of course, but one would be convicted of a hate crime.”
The point was picked up by Mr O’Callaghan.
“There may be no motivation in respect of hatred giving rise to the fight but after the fight, one of them may make a racist slur to the other. As a result of that, even though he was not motivated by hatred to commit the crime, he would suffer the consequence of being convicted of that, because after the offence he made a racist slur,” he said.
Minister of State James Browne did not support an amendment from Mr Murphy that would have deleted the “demonstration” aspect from the proposed law, leaving the more traditional criminal law challenge of having to prove motivation.
“The use of a demonstration test in proving hate offences will make it easier for An Garda Síochána to investigate potential hate crimes from the beginning, and the hate element of the offence can then be presented and challenged in court if deemed appropriate,” Mr Browne said.
Another factor raised by Mr Murphy, which has also been highlighted by the Irish Council for Civil Liberties, is the criminalisation of the possession of material prepared for circulation that would, if it were circulated, be considered an incitement to hatred.
Mr Murphy referred to this as the creation of a “thought crime”, saying that while he was fully supportive of the legislation generally, he found this provision problematic.
However, again, Mr Browne was not convinced. He cited an imaginary case where the gardaí intervened before material designed to incite hatred was circulated.
“This is not the thought police. This is about holding people accountable,” he said.
Seamus Taylor, the head of applied social studies at Maynooth University and an expert in hate crime, said the legislation being introduced closely resembles that which has existed for a long time in the UK where it has been functioning well. He is in favour of the demonstration test.
Irish judges, he said, are not “centres of over-woke sensibility”.