The Government has approved the publication of new legislation to combat hate crime and hate speech, which is expected to become law by the end of this year.

The new law will criminalise any intentional or reckless communication or behaviour that is likely to incite violence or hatred against a person or persons because they are associated with a protected characteristic. The penalty for this offence will be up to five years' imprisonment.

The protected characteristics in the proposed new legislation are: race; colour; nationality; religion; national or ethnic origin; descent; gender; sex characteristics; sexual orientation; and disability.

The Incitement to Violence or Hatred and Hate Offences Bill 2022 will also create new, aggravated forms of certain existing criminal offences – including assault and criminal damages – where those offences are motivated by hatred of a protected characteristic.

These will carry an enhanced penalty, and the criminal record will clearly state that the offence was a hate crime.

Online hate-speech

The Department of Justice says that the provisions of the new legislation have been crafted to ensure that they will capture hate speech in an online context.

The published bill includes a number of changes made since the general scheme was published in April 2021.

The proposed legislation now includes a general provision aimed at providing stronger protections for genuine freedom of expression.

According to the Department of Justice, the provision clarifies that a communication is not taken to incite violence or hatred solely on the basis that it involves discussion or criticism of matters relating to a protected characteristic.

‘Demonstration test’

Other changes include a ‘demonstration test’ for hate crimes, to make it easier to secure prosecutions and convictions for crimes motivated by hate.

This means that a perpetrator demonstrates hatred towards a member of a protected group or characteristic at the time of an offence being committed.

This will be an additional/alternative test to the ‘motivation test’ previously outlined in the general scheme, as it was decided that motivation alone could be difficult to establish.

The Minister for Justice Helen McEntee said that all provisions throughout the bill had been “carefully developed” to ensure that it was victim-centred, and effective in securing convictions where serious crimes were committed.

‘Sex characteristics’ added

The new bill would repeal and replace the Prohibition of Incitement to Hatred Act 1989, under which only around 50 prosecutions have been made.

Gender, disability, descent, and sex characteristics were not included in the 1989 act. The department says that descent and sex characteristics have been added to the bill in recent months after additional consultation.

‘Sex characteristics’ covers all physical and biological features of a person relating to their sex.

Descent is distinct from race, and the department says that this would be relevant in the context of the Jewish community, where a person may have Jewish ancestry but does not practise the religion.