Government must walk a tightrope on hate speech plans

Incoming legislation on hate speech likely to generate significant debate

Bilal Ahmed shows scars from a knife wound he sustained in a racial attack outside his takeaway on Clanbrassil Street in Dublin.  Photograph: Crispin Rodwell

Bilal Ahmed shows scars from a knife wound he sustained in a racial attack outside his takeaway on Clanbrassil Street in Dublin. Photograph: Crispin Rodwell

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The large scar on Bilal Ahmed’s hand required thirty stitches to close up. Ten months on from the attack, it still causes him pain.

The stabbing was the culmination of years of harassment and often racist abuse from Christy Griffin who lived in an apartment near the takeaway on Clanbrassil Street and who was angry over the noise made by its customers at night.

“I went 20 or 30 times to Garda station because it was just too much,” recalled Ahmed who is from Punjab in Pakistan and has been in Ireland 17 years.

One night in April 2017, Griffin entered Chicken Hut, punched Ahmed and smashed up the premises with a hockey stick. He later told arresting gardaí: “F**k those P**i c**ts .They will never make it to court. I will make sure of that… you wait and see.”

Griffin was released on bail and the abuse continued. In February 2020, he waited for Ahmed to close up the restaurant before attacking with him with a knife and stabbing him in the hand.

Anti-racism education

“It was a racist attack,” says Ahmed. When the case reached court two months ago Judge Karen O’Connor seemed to agree, noting Griffin’s “disgusting racist and abusive” remarks to gardaí. She imposed a six-year sentence but suspended half of it and ordered Griffin to take part anti-racism education.

For Ahmed, the sentence was not nearly enough. “I complained so many times about him. I know he received six years but he will only be in jail for three.”

Ahmed says only “about 2 per cent of people are Irish racist”. But he still feels less safe here after the attack.

Judge O’Connor was constrained in sentencing Griffin because, unlike many European countries, Ireland does not have any hate crime laws. At best, judges can take racist motives into account when sentencing but this is an informal and ill-defined process.

A broad-ranging piece of Government legislation due to be introduced next year aims to change that. Under the plan, details of which are due to be announced today, crimes such as criminal damage and assault will attract significantly tougher punishments if they are found to have a bigoted element, including racism, homophobia, transphobia or anti-disability sentiment.

It will be a high bar to prove a hate crime and juries will be able to downgrade one to an ordinary crime if they feel the hate element was not proven. For example, if someone is accused of a racist assault, a jury might decide an assault happened, but that it was not racist.

This part of the Bill is likely to be relatively uncontroversial. The second part, which will deal with hate speech, is sure to generate significantly more debate.

The existing Incitement to Hatred Act 1989 is to be repealed in its entirety. The Department of Justice has come to the conclusion that it is almost entirely ineffective. Between 2000 and 2017 there were only 44 prosecutions, but just five convictions.

One of the failed prosecutions examined by the department was against a man who set up a Facebook page suggesting Traveller babies be used for medical testing, or as animal feed. A judge ruled the comments did not amount to incitement, despite the page attracting more than 600 fans.

The new legislation aims to be much more robust, particularly when it comes to the internet.

Hate speech directed at an individual or group will become a crime whether it is shouted in the street or tweeted online. It will also be a separate offence to distribute or share hate speech, meaning retweeting or sharing something on social media could form an offence.

During a public consultation last year, the department received many submissions expressing legitimate concerns about the impact of such laws on freedom of speech and debate.

Prosecuted

Officials are eager to avoid a situation where the Bill becomes part of the broader culture wars that have engulfed the United States and United Kingdom. To this end they have studied equivalent legislation in the UK and examples of what were seen by many as prosecutorial overreach.

For example, in 2017 a 19-year-old UK woman was prosecuted for posting the lyrics of a rap song which contained the n-word to social media as part of a tribute to a deceased friend.

Such prosecutions will be unlikely to happen here as the test of hate speech will be based around the motivation of the speaker. Intentionally or recklessly engaging in hate speech might be a crime. Doing it inadvertently would not.

The legislation will also protect debates on controversial issues which may cause offence to some people or groups. This includes debates on issues like immigration and allowing trans teenagers to begin gender reassignment.

“The new legislation should contain robust safeguards for freedom of expression, such as protections for reasonable and genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting,” the report states.

Much has to happen before the Bill becomes law. It faces a lengthy journey through the Oireachtas and because of its significance, it is likely to go before the justice committee.

Minister for Justice Helen McEntee is aware she has a tightrope to walk between protecting minorities and protecting free speech.

She is also aware the Bill will be used as a rallying cry for far-right and racist groups worried the law will stifle their activities. Such groups have already starting protesting the issue. It will be the Government’s challenge to ensure they do not hijack the debate entirely.