Next Government set to Further Criminalise Hate Crime and Speech
The Programme for Government negotiated by Fianna Fáil, Fine Gael and the Green Party has pledged that the incoming government will enact further legislation “within 12 months” of its formation to criminalise hate crime and hate speech.
Published under “Building Stronger and Safer Communities”, the proposed legislation “will create specific offences to ensure that those who target victims because of their association with a particular identity characteristic are identified as perpetrators of hate crime”. It states that offences prosecuted under future legislation will be processed “on the basis of the aggravated offences model”. In ensuring its implementation, the Programme asserts that it “will be supported by training across the criminal justice system, as well as victim supports”. With regard to hate speech, the document advances reform to “revise and update the Incitement to Hatred Act 1989” which will be informed by public consultations undertaken last October.
These proposals emerge amidst global protest and society-wide rethinking on issues of systemic racism and discrimination; sparked by the killing of George Floyd by the Minneapolis Police Department. Speaking after the Black Lives Matter protest outside the US Embassy in Ireland, Taoiseach Leo Varadkar opined that Ireland had made progress in combating racism, but that “we need to bring in some new laws around hate speech and hate crimes. It’s not easy to do because you don’t want to shut down freedom of speech either but we need to make some more progress on that”. These comments echo similar remarks made by Minister for Justice Charlie Flanagan last October that he was concerned “as to the manner in which minority groups in particular are being treated and the fact that offensive speech, hate speech is becoming commonplace in Ireland”.
At the time of writing, Ireland does not have specific legislation to prosecute individuals who commit crimes (e.g. assault, criminal damage) with hateful intent against victims because of their association with a defined group and its particular characteristics (i.e. ethnicity, sexual orientation). Instead, judges may only take “a hate motive” into account as an aggravating factor when sentencing the criminal offence. Despite some internal Garda reforms in processing these crimes, such as improved motive and bias recording within the PULSE data system, it is routine that “the hate element of a crime is filtered out of the criminal justice process” by the time it reaches the judge’s chambers; a report issued by the Irish Human Rights and Equality Commission declared in 2018. Only the year before, the EU Fundamental Rights Agency had revealed that Ireland “ranked highest among the EU Member States” in reported attacks against respondents from a sub-Saharan background due to their ethnic or immigrant background (21% of respondents compared to the EU group average of 9%).
Ireland has one piece of hate crime legislation – the Prohibition of Incitement to Hatred Act 1989. This Act targets hate speech and prohibits threatening or abusive conduct which is likely or intended to stir up hatred against a group of persons based upon specific characteristics (e.g. race, sexual orientation). But the legislation in its current form has several limitations as identified by the Department of Justice’s review last October. Firstly, the characteristics section fails to reflect contemporary Irish society in its omission of transgender and intersex individuals from its scope. The Review also notes frustrations expressed by prosecutors at the high burden of proof set by the “likely” or “intended” to stir up hatred benchmarks. This goes some way towards explaining the Act’s rather toothless performance returning only 5 successful convictions in its 30-year existence. Lastly, uncertainty exists over its efficacy in the online sphere. Although “the definitions of “broadcast”, “publish”, “recording” and “distribute” in the Act are wide enough to cover social media discourse”, this is less clear for “distributing written material to the public or a section of the public”. As social media posts are limited to ‘followers’ or ‘friends’, the Review posits that these may not be public and therefore not prosecutable under the Act.
So what can we expect from future legislation in this area? Speaking to The College Tribune, Professor Bryan Fanning (UCD Migration and Social Policy) would anticipate “courts to specifically acknowledge racism and other hate motives in defining offences and imposing sentences” in any proposed bill. “Racist motives” must be “considered in prosecution and sentencing” by the Gardaí otherwise there exists “no incentive to record and investigate racism”. These reforms would necessitate “the setting out of sentencing policies by the Director of Public Prosecutions” which has “historically” been resistant to such measures. With these reforms noted, Professor Fanning observes that it “require[s] some fundamental changes that I fear would not be addressed in the kind of Hate Crime legislation that is proposed”. As distinct from legislation, Fanning adds that not enough is being done to “respond to the needs of victims of racism” and “unless agencies are clearly accountable to victims” then this neglect can “often lead to further trauma”.
At a student level, UCD commits to upholding “the dignity and respect of the individual” and support their right “to study and/or work in an environment which is free from discrimination” under its Dignity and Respect Policy. Pursuant to the Policy, bullying, sexual harassment and other forms of harassment are prohibited and complaints processed under its accompanying Dignity and Respect Procedure. “Other harassment” is the operative word here as it applies to any “unwanted conduct” that is discriminatory, including “one-off incident[s]”, pertaining to gender/gender identity, race, sexual orientation and more. Where a complaint is upheld against a student, then Student Code penalties are administered which at its severest can result in “expulsion from the university”.
Rowan Kelleher – Reporter