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Right to free speech will be respected in any hate crime law
Justice minister Helen McEntee Pic: RollingNews.ie

18 Dec 2020 / legislation Print

Free speech to be respected in any hate crime law

The right to freedom of expression will be fully considered in the drafting of any new legislation on incitement to hatred and hate crime, according to justice minister Helen McEntee.

The new legislation should contain robust safeguards for freedom of expression, such as protections for reasonable and genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting.

Last resort

And the criminal law as it applies to hate speech should always be the measure of last resort, a public consultation document on the matter has concluded.

A Department of Justice statement has said that all legislative proposals are developed and put forward bearing in mind the provisions of the Constitution and human rights obligations under the European Convention on Human Rights Act 2003

However, comments sections in various media outlets were deemed to be “problematic”, a consultation document on new legislation says. 

The minister was launching the findings of a public consultation which received 3,526 responses to a five-question online survey, though 8% of responses were repeated, giving a true participation rate of 3,241.

The majority of responses were from Ireland (79%) with a minority from the United Kingdom, the United States and Canada (16% in total).

There were 182 detailed written submissions with 77 submissions from civil society groups, professional or academic organisations or NGOs. The remainder were from individuals.

Community and civil society groups comprised 28% of the written responses.

The minister has  announced her intention to bring forward new legislation to combat incitement to hatred and hate crime in Ireland in 2021. 

Proportionate

The minister said that many of those who participated in the consultation had been victims themselves, while others were concerned about the very real need to respect the human rights of everyone involved, including the right to freedom of speech, so that the new legislation was proportionate, as well as effective in achieving its aims.

The consultation concludes that in the long term, prevention of such “hate crime” incidents is much more desirable for all concerned. 

“Success in this regard will depend almost entirely on non-criminal, education and awareness-based measures. 

“Measures ranging from education and awareness to codes of conduct and professional standards are essential to any comprehensive approach to tackling hate speech and hate crime, including by effective prevention,” the document says.

Launching the findings of the consultation, Minister McEntee said that victims of hate crime are targeted because of something innate such as race, sexuality or disability.

The fear that arises from hate crime can lead to a more divided society, she said.

“This consultation is a really useful contribution toward the development of new criminal legislation to deal with hate crime and incitement to hatred.

Incitement

“I intend to bring the Heads of a Bill to Cabinet by Easter 2021,” the minister said.

The new law will cover both incitement to hatred and hate crime.

The new hate crime offences will be aggravated versions of existing crimes, for example offences against the person, criminal damage or public order offences, where they are carried out because of prejudice against a protected characteristic.

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 available to the judge at sentencing.

Offence

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.

Minister McEntee said: “As Minister for Justice, I am determined to tackle these crimes and to ensure that those who seek to divide our communities and spread hatred and fear, including online, are dealt with effectively by our criminal justice system. I want perpetrators to know that their crimes will be reported, investigated and prosecuted. 

“There is no place for hate crime in our society. The legislation will deal with situation where perpetrators seek to incite other people to hatred from behind the protection of a screen or an anonymous account. This is an important factor in order for this legislation to be as effective as possible in tackling all forms of hate speech.

“Regarding the fundamental constitutional right of freedom of expression,  I want to assure people that this legislation will be proportionate, specific, and clear, with offences capable of being proven beyond reasonable doubt. There will be no confusion as to what constitutes criminal hate speech.

“It is my hope we will develop a strong and effective legislative infrastructure to help tackle this serious form of crime which will also be evidence-based, while respecting important rights to freedom of expression and association.”

Cultures

The consultation document says that Ireland’s historic approach to hate crime has been defined by a sense of this country as “monocultural”, where no minority cultures exist.

“It is widely held that this traditional view cannot hold in the Ireland of today, whose society is so changed, so colourful and so diverse in comparison with the country of 50f years ago.” 

The document disputes that Ireland was ever monocultural and says the Travelling community has experienced “individual and systemic prejudice”.

One of the document’s conclusions is that the definition of “ethnicity” in any new legislation should explicitly include membership of the Travelling community on the same footing as other ethnicities.

Consultation participants cited their experiences of ill-treatment on grounds of physical and mental disability, mental illness, sexual orientation, and socio-economic status, including “postcode prejudice”.

Commentary

Free speech should be protected for reasons of legitimate political commentary, artistic expression, and legitimate scientific discussion, and true or factual statements as well as jokes, insults and cartoons, the document says.

However, actions glorifying or encouraging violence, or unlawful discrimination, should be criminal, some participants believe. 

Public figures and those with a wide platform for their views must be held to a higher standard, participants said.

The document says that hate crime involves a “signalling” element that can spread fear, isolation and anger.

Therefore, it can be “useful” to have specific forms of offences which recognise this harm and provide enhanced penalties.

Hate motive 

Judges may consider a hate motive an aggravating factor and may reflect this in a sentence, but this is not reflected in the formal records of the conviction, the document says

It adds that the structure of the 1989 Prohibition of Incitement to Hatred Actis “not useful in practical terms for prosecution of incitement to hatred”.

The document adds that criminal legislation will not solve the problem of hate speech and many milder forms do not reach the threshold for criminal prosecution.

Codes of conduct 

“Measures ranging from education and awareness to codes of conduct and behaviour are essential to any comprehensive approach to tackling hate speech and hate crime, including by effective prevention,” it says, accepting that some countries restrict offences to characteristics such as race and religion.

“All in all, there are many approaches to tackling hate crime internationally, reflecting the complex nature of these incidents and the requirement to protect people from criminal sanction where their behaviour does not warrant the application of the coercive powers of the State,” it says.

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Gazette.ie is the daily legal news site of the Law Society of Ireland