New landmark legislation introducing a statutory aggravation model for hate crime in has been approved by the Cabinet.
Minister for Justice Helen McEntee has published a draft of the Criminal Justice (Hate Crime) Bill 2021 which will become Ireland’s only specific legislation dealing with hate crime pending approval.
The only legislation dealing with hate-based offences is the Prohibition of Incitement to Hatred Act 1989, under which there have been very few prosecutions.
The proposed bill will create new, aggravated forms of certain existing criminal offences, where those offences are motivated by prejudice against a protected characteristic.
The protected characteristics under the proposed bill have been expanded from the 1989 Act to cover race, colour, nationality, religion, ethnic or national origin, sexual orientation, gender and disability.
The draft heads make clear that “gender” includes gender expression or identity, that “ethnicity” includes membership of the Traveller community, and that “religion” includes the absence of religious belief.
Crimes including assault, coercion, harassment, criminal damage and threats to kill or cause serious harm, endangerment and other offences will become aggravated offences under the bill.
The aggravated offences will generally carry an enhanced penalty, compared to the ordinary offence, and the record of any conviction for such an offence would clearly state that the offence was motivated by prejudice.
The new offences also carry a provision for an alternative verdict, where the ‘hate’ element of the offence has not been proven. In such cases, the person can be found guilty of the ordinary version of the offence, rather than the aggravated version.
Minister McEntee said: “Creating these new offences will mean that a crime can be investigated as a potential hate crime by gardaí, and evidence of the hate element can be presented in court.
“Where the jury finds that the crime was a hate crime based on the evidence, and convicts the person of a hate crime, the enhanced penalty for the new offence will be available to the judge at sentencing.
“Where the jury finds that the hate element is not proven, they will still be able to convict the person of the ordinary form of the offence.”
For other offences, where a specific, hate aggravated form of the offence has not been created, but where the court finds the crime was motivated by prejudice, prejudice must be considered as an aggravated factor at sentencing. This must also be placed on the formal record.
Minister McEntee added: “This legislation will be proportionate, specific, and clear. The offences will be capable of being proven beyond reasonable doubt and will be absolutely clear as to what constitutes criminal hate speech.
“The legislation we are working on will be evidence based, while respecting the vital constitutional right to freedom of expression and association.”
