The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 was published on 27 October 2022. It recently passed through Dáil Éireann and is currently before the Seanad.
The Bill 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 such as race, gender, religion, sexual orientation amongst others. The penalty for this offence will be up to five years’ imprisonment.
It will also create new, aggravated forms of certain existing criminal offences, 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.
The new legislation will repeal the existing Prohibition of Incitement to Hatred Act 1989, which is widely considered as ineffective and has only led to around 50 prosecutions in the more than 30 years since enactment. The Bill intends to amend the law relating to the prohibition of incitement to violence or hatred against a person or a group of persons on account of protected characteristics and to provide for an offence of condoning, denying or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace. The Bill intends to give effect to Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.
The protected characteristics in the new legislation are race; colour; nationality; religion; national or ethnic origin; descent; gender; sex characteristics; sexual orientation; and disability. Gender, disability, descent and sex characteristics were not included in the 1989 Act, and descent and sex characteristics have been added in recent months following additional consultation with key stakeholders. “Sex characteristics” means all physical and biological features of a person relating to their sex. “Descent” is distinct from race and would be relevant, for example, in the context of the Jewish community, where a person may have Jewish ancestry but does not practice the religion.
The specific aggravated offences provided for in the new legislation are those which most commonly manifest as hate crimes, for example assault and criminal damage. When one of these offences is committed, and the perpetrator either demonstrates hatred of a protected characteristic while committing the offence, or is motivated by hatred of a protected characteristic, this will be a hate crime. These behaviours, such as assault and criminal damage, are already crimes, but the hate element will lead to a higher penalty and the crime will be recorded as a hate crime. For any crime other than those expressly provided for in this new law, a judge will be able to hand down a higher sentence if there is evidence that there was a hate element to the crime.
The Incitement to Violence or Hatred and Hate Offences Bill will fulfil two Programme for Government commitments: to introduce hate crime legislation and to update the Prohibition on Incitement to Hatred Act 1989. The new legislation is strongly aligned to the European Council Framework Decision 2008/913/JHA on combating racism and xenophobia, and will fulfil Ireland’s international obligations. The Bill must now be passed by the Seanad before it can be enacted and signed into law by the President.