What are the proposed new hate crime laws and why the delay?

What exactly is in the new hate crime Bill?

It’s likely that the proposed new hate crime laws will be delayed again until next year despite Government plans to have the measures enacted by the end of 2023. A spokesman for Minister for Justice Helen McEntee confirmed the new timeline, which comes after numerous Coalition figures indicated their intention to change the laws in light of the recent Dublin riots, following an attack on five people outside a school.

In September, Ms McEntee had indicated her intention to have the laws enacted by the end of this year. A spokesman for Ms McEntee has now told The Irish Times that “Minister McEntee intends progressing the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill early in the new year”. The first two Bills have now passed all stages in the Oireachtas and the Policing, Security and Community Safety Bill (PSCS Bill) will be at committee stage in the Seanad this week, and it is expected to pass all stages by the Christmas recess.

The new hate speech and hate crime Bill will create new aggravated forms of certain existing criminal offences such as assault, where those offences are motivated by hatred against people with a “protected characteristic” such as race, gender, religion, sexual orientation or disability.

Why is this legislation being introduced?

The aim is to repeal the Prohibition of Incitement to Hatred Act 1989 in its entirety and replace it with simpler provisions for Incitement to Hatred. The Government has said those laws are not fit for purpose, especially in an online age. According to an explanatory memo for the proposed new law, the new offence “has been drafted in such a way that it will be easier to secure a conviction”. There is a list of protected characteristics aimed at protecting certain identity characteristics from harm.

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There have been a number of issues raised including around the definition of hatred and the use of a demonstration test of proof in hate crime cases. This test requires that a perpetrator demonstrates hatred towards a member of a protected group or characteristic at the time of an offence being committed. Some Senators have also raised issues with the definition of gender in the Bill.

Ms McEntee has previously strongly defended the Bill and said there was a clear difference between a person holding an offensive view about a characteristic, and a person directing hate at an individual because of their characteristic.

What are the characteristics?

They are race, colour, nationality, religion, national or ethnic origin, descent, gender (including gender expression or identity), sex characteristics, sexual orientation and disability.

Why were these specific characteristics picked?

The Government has said they were chosen after lengthy consultations and because these were the characteristics most commonly targeted for hate-based offences in Ireland.

So what offences will be created?

There are 12 aggravated offences which can be classified as “hate crimes”. These include assault, violent public order offences or criminal damage among others. If a person commits one of the 12 offences and it is found that it was aggravated by hatred, a harsher sentence could be applied. It will be up to the Director of Public Prosecutions in the first instance, however, to direct that a prosecution be brought forward.

What does the legislation say about the communication of alleged hate speech?

The creation of a new offence of incitement to violence or hatred is laid out in section 7. The offence will be based on a person communicating material to the public that is “likely to incite violence or hatred”. The threshold for this offence is intent or recklessness, so this means the person actually intended to incite violence or hatred. Furthermore, in section 10, there is an offence for those who create content that would incite violence with the intention of communicating it, but have not yet communicated it publicly.

What does the Bill say about freedom of expression?

Section 11 explicitly deals with the issues of freedom of expression. It says that discussion or criticism of matters relating to a protected characteristic does not constitute incitement to hatred in and of itself.

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