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Michael McDowell: Do we really want citizens arresting one another for incitement to hatred?

In this cancel culture era, should activists have the right to physically arrest and detain those whom they suspect are engaging in incitement to hatred?

Protestors outside the Oxford Union where gender-critical feminist Dr Kathleen Stock was speaking in May. Photo by Eddie Keogh/Getty Images

In 1997, the Oireachtas enacted a far-reaching statute to codify and reform the criminal law, much of which was based on judge-made common law stretching back over the centuries. The statute was entitled the Criminal Law Act, 1997.

One thing done in that Act was to abolish the ancient legal distinctions between what were termed felonies and misdemeanours. Felonies were serious offences, including murder, treason, robbery, theft, rape and the like. Crimes were reclassified in 1997 into different categories – arrestable offences, indictable offences and summary offences.

One less-known consequence of the abolition of distinctions between felonies and misdemeanours was to end the pre-existing law that enabled any citizen to exercise a power of arrest of another person where a felony had been committed and whom the arresting person had reasonable ground to believe had committed the felony. Not merely was a person entitled to arrest an absconding felon; at common law it was a duty.

But the Criminal Law Act, 1997, did not completely abolish what is colloquially called the citizen’s power of arrest; at section 4, it provided that “any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence.”

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The same section also provides that where “an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence”.

But those statutory powers of arrest are, since 1997, limited by two conditions. The first is that an arrest by a non-garda can only be carried out if the arresting person, with reasonable cause suspects that the person to be arrested would otherwise attempt to avoid, or is avoiding, arrest by a member of the An Garda Síochána. The second is that the arresting person must transfer the arrestee to the custody of a member of the An Garda Síochána as soon as practicable.

All of that makes sense. The occupier of a house is thus entitled to arrest, detain and use reasonable force to subdue to custody any burglar with a view to handing the burglar over to An Garda Síochána. We all, including victims, are not obliged to let the perpetrator abscond.

Whenever the Oireachtas creates any new offence, it matters crucially in relation to citizens’ right of arrest without warrant whether it is, or is not, an arrestable offence for the purposes of the 1997 Act.

The test as to whether it is an arrestable offence is whether a person convicted of it on indictment is liable to imprisonment for a term of five years or greater.

The Dáil recently passed the Criminal Justice (Incitement to Hatred and Hate Offences) Bill 2022, providing a maximum penalty on conviction of indictment of five years’ imprisonment for a person who intentionally or recklessly says anything in public, or behaves in any way in public, or communicates to the public in a way that is likely to incite violence or hatred against any person, or group of persons, on account of their protected characteristics.

That offence accordingly would be an arrestable offence, conferring a power of arrest on any person under, and in accordance with, section 4 of the 1997 Act.

So, the power to arrest suspected incitement offenders is not to be restricted to members of An Garda Síochána; it is available to anyone. In the UK, by contrast, parliament expressly excluded the citizen’s or victim’s power of arrest in similar cases in their Racial and Religious Hatred Act 2006. Why not here?

Do we really want a situation where citizens on the street or even at public meetings in private premises such as halls or hotels can lawfully arrest each other on suspicion of incitement to hatred?

Especially in an era of what is termed cancel culture, do we really want to confer on activists of whatever kind the right in public places and public meetings to physically arrest and detain those whom they suspect are engaging in incitement to hatred against one person or a group of persons on account of protected characteristics.

In view of the cancellation of a planned International Women’s Day speaking engagement at University of Limerick by Mary Kenny, a founder of the Irish Women’s Liberation Movement in Ireland, because of her views on the transgender issue or – in the UK – the chaotic disruption of a speech by gender-critical feminist Dr Kathleen Stock at the Oxford Union, and suggestions that some feminists must now meet in semi-secrecy in Dublin, the notion of empowering people to arrest others for suspected hate speech looks like madness.

All this shows how vital it is to carefully consider, line by line, any proposed law to preserve public order and respect the constitutional rights of citizens, including freedom of speech.

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