Seanad passes Hate Offences legislation
The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 has completed the fifth and final stage of the Seanad, however, the sections relevant to hate speech, and incitement to hatred and violence have been removed. The legislation will now be titled the Criminal Justice (Hate Offences) Act 2024.
Hatred Now an Aggravating Factor
The Criminal Damage Act 1991 is amended to include section 2A, which states that if the accused demonstrates hatred towards the victim immediately before, during or immediately after damaging property, and the hatred is on account of the victim’s membership or presumed membership of a group defined by reference to the protected characteristic, then the offence is aggravated by hatred. The aggravating factor works to increase the maximum sentence from 10 to 12 years imprisonment. The ‘protected characteristics’ are discussed in further detail below.
The Criminal Justice (Public Order) Act 1994 is amended in a similar manner. Threatening, abusive or insulting behaviour in public is aggravated by hatred such that the maximum sentence is increased to 6 months. The aggravated distribution or display in a public place of material which is threatening, abusive, insulting or obscene is also 6 months. Entering a building with intent to commit an offence aggravated by hatred is punishable by 9 months imprisonment, while assault with intent to cause bodily harm aggravated by hatred under section 18A of the Criminal Justice Public Order Act 1994 is now punishable by a maximum of 7 years imprisonment.
The maximum sentence for assault aggravated by hatred under the Non-Fatal Offences against the Person Act 1997 is now 9 months. Offences under the 1997 Act are aggravated if at the time of committing the offence or immediately before or after, the accused demonstrates hatred towards the victim on account of its membership to a group defined by reference to a protected characteristic or if the offence is motivated wholly or partly by hatred towards such a group.
If the aggravated assault causes harm, the maximum sentence is 7 years, and if it causes serious harm, the maximum punishment is life imprisonment. Aggravated threats to kill or cause serious harm are punishable by 12 years imprisonment, aggravated coercion by 5 years, and aggravated harassment by 12 years.
Part 2 of the Bill – Hate Speech Framework Removed
The Bill had previously been intended to give effect to the EU Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. To do this, the Bill aimed to amend the law relating to the prohibition of incitement to violence or hatred against a person or a group of persons on account of certain characteristics (referred to as protected characteristics) of the person. These characteristics are:
race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation or disability.
The religion characteristic includes the absence of a religious belief. ‘Descent’ refers to persons who descend from individuals who could be identified by certain characteristics, but who do not possess all of the characteristics of their ancestors. ‘Gender’ is given a broad definition, including the expressed gender, preferred gender, the gender with which an individual identifies, transgender, and a gender other than those of male and female.
In section 7, the Bill provided for an offence of incitement to violence or hatred against persons on account of their protected characteristics. A person would have been guilty of an offence if the person communicated material to the public or behaved in a public place in a manner likely to incite violence or hatred against a person on account of their protected characteristics, and did so with intention to incite violence or hatred or while being reckless as to whether violence or hatred is incited. The maximum sentence for this offence was 5 years imprisonment. A defence envisioned to such a charge was to prove that the material or behaviour concerned was a reasonable and genuine contribution to literary, artistic, political, scientific or academic discourse, was the subject of absolute privilege, or was necessary for a lawful purpose, such as law enforcement or the prosecution of an offence.
Section 8 would have criminalised condoning, denying or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace where the material or behaviour doing so was directed against a person or group of persons on account of their protected characteristics and is done with intent to incite violence or hatred. The maximum sentence for this offence would have been 12 months on summary conviction.
Under section 10, preparing or possessing material likely to incite violence or hatred against persons on account of their protected characteristics, with intent or being reckless as to whether the material incites violence would have been punishable with a maximum of 2 years imprisonment.
Section 11 provided protection for the freedom of expression, stating that material or behaviour is not taken to incite hatred or violence if it involves discussion or criticism of matters relating to a protected characteristic. This entire framework, sections 6 to 16 have been removed.
The effect of the removal of Part 2 is that hate speech continues to be governed by the Prohibition of Incitement to Hatred Act 1989, which states it is an offence to communicate threatening, abusive or insulting material that is intended or likely to stir up hatred against a person because of characteristics including race, colour, nationality, ethnic or national origins, membership to the travelling community or sexual orientation. Notably, the act does not make reference to gender, disability or descent.
In September, the Taoiseach was reported as commenting that updated hate speech laws are needed but that the area should first be considered by the Oireachtas Justice Committee. FLAC has previously recommended that the ongoing comprehensive review of Ireland’s equality and anti-discrimination legislation should examine the potential for a civil remedy for discriminatory hate speech under the equality legislation. In September, the Taoiseach was reported as commenting that updated hate speech laws are needed but that the area should first be considered by the Oireachtas Justice Committee. Minister for Justice Helen McEntee has stated she believes updating the Incitement to Hatred Act 1989 is absolutely necessary and should be next on the parliament’s agenda. She has stated that the incitement to hatred element of the Bill (Part 2) will be dealt with at a later stage, and that she is adamant that hate crime legislation will be enacted. FLAC has previously recommended that the ongoing comprehensive review of Ireland’s equality and anti-discrimination legislation should examine the potential for a civil remedy for discriminatory hate speech under the equality legislation. The Coalition Against Hate Crime welcomed the Seanad passage of the Hate Offences Bill. Brian Killoran, CEO, Immigrant Council of Ireland, commented:
“People who experience highly damaging and corrosive racial abuse must be protected within the law. For that reason we welcome the progression of this legislation, and impress upon our political establishment to commit to also address the hate speech elements of the legislative reform as a matter of continued urgency.
Progress on tackling hate cannot leave extreme hate speech behind. These issues are interlinked and EU commitments, which the government cannot sidestep, require changes to our existing legislation. As a Coalition, we will continue to campaign for effective legislation to counter extreme hate speech, and for a much wider approach to understand and tackle hate in Ireland.”