The Bill will repeal and replace the Prohibition on Incitement to Hatred Act 1989 (1989 Act), which is regarded as ineffective, securing only around 50 prosecutions in over 30 years since it was enacted. The Bill is strongly aligned to the European Council Framework Decision 2008/913/JHA on combating racism and xenophobia under the criminal law, which means that its implementation will also fulfil Ireland’s EU membership obligations.
The Bill aims to criminalise any intentional or reckless communication or behaviour likely to incite violence or hatred against a person or persons because they are associated with a protected characteristic. The Bill proposes a term of imprisonment of up to five years for persons convicted of such an offence.
The protected characteristics under the Bill are;
- National or Ethnic Origin;
- Sex Characteristics;
- Sexual Orientation; and
The 1989 Act did not include protections based on gender, disability, descent, and sex characteristics (meaning the physical and biological features of a person relating to their sex). Introducing these characteristics into the legislation protects a much wider group of people than before.
The Bill will completely modernise Ireland's approach to hate crimes and speech. Some of the highlights from the Bill are as follows:
- The Bill creates aggravated forms of certain existing criminal offences where they are motivated by hatred of a protected characteristic. These aggravated offences will carry greater penalties and a criminal record which clearly states that the offence was a hate crime.
- The Bill includes provisions to strengthen protections for genuine freedom of expression. This means that a communication will not be taken to incite violence or hatred solely because it involves discussion or criticism of matters relating to a protected characteristic.
- The Bill covers hate speech in an online context and will complement provisions under the Online Safety and Media Regulation Bill, which is currently making its way through the Houses of the Oireachtas.
- The Bill introduces a demonstration test for hate crimes to make it easier to secure prosecutions and convictions for crimes motivated by hate. The demonstration test will be an additional or alternative test to the ‘motivation test’ which was included in prior drafts of the Bill.
Motivation Test vs. Demonstration Test
The motivation test for a hate crime will look for proof of a person's subjective motivation for committing an offence. This means that the prosecutor would have to get inside the mind of the offender and prove beyond a reasonable doubt that the accused had the motivation to commit the crime. This was considered a very high threshold and could act as a barrier to conviction in certain cases.
The Minister was of the view that motivation alone in proving hate crime offences could be difficult to establish and might not result in a conviction. Partly on foot of recommendations from the Joint Committee on Justice following its pre-legislative scrutiny of the Bill, the Minister has included the demonstration test in the Bill.
A demonstration test looks at whether the person accused of a crime under the legislation demonstrated hatred towards a member of a protected group or characteristic while the offence was being committed. For example, if, at the time the crime was committed, the offender was using racial slurs, offensive gestures, or symbols which would demonstrate hatred towards the victim. When utilising this test, the prosecution will not need to show some motivating factor for the crime but can instead point towards empirical evidence of the perpetrator's actions at the time of the offence to prove that the crime was hate-based.
The introduction of the demonstration test provides a lower threshold than that of the motivation test which may have the effect of securing more convictions for offences under the proposed legislation. Coupled with the other provisions of the Bill, this will likely set the scene for a stricter regime than existed under the 1989 Act.