Helen McEntee

Justice Minister Helen McEntee today published the general scheme of the Criminal Justice (Hate Crime) Bill 2021 which, if approved, will become Ireland’s only specific legislation dealing with hate crime.

The only legislation in Ireland that deals 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.

A judge-led review of hate crime laws in Northern Ireland recently recommended the introduction of a similar statutory aggravation model north of the border, highlighting the success of the model in Scotland.

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.

Ms 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.

Ms McEntee said: “The nature of the crimes will be properly recorded and taken into account so we have accurate data to inform our wider responses.

“Offenders will also be managed appropriately, and perpetrators will know that their crimes will be reported, investigated and prosecuted, which is the most effective form of deterrence.”

The general scheme also proposes new offences of incitement to hatred, which the government says are “clearer and simpler” than those in the 1989 Act.

These offences cover inciting hatred against a person or persons because they are associated with a protected characteristic, and also disseminating or distributing material inciting hatred.

The threshold for criminal incitement to hatred in the new offences is intent or recklessness. The minister said the constitutional rights of freedom of expression and of association will be respected in the new legislation.

Ms McEntee said: “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.”