Speech from Report Launch, ‘A Life Free From Fear’ - Legislating for Hate Crime in Ireland: An NGO Perspective’
2 September 2014
Speech for Launch of Report
Thank you very much for the invitation to launch this important report. I wish to commend and compliment the authors, University of Limerick academics Jennifer Schweppe (School of Law), Dr Amanda Haynes and Dr James Carr (Department of Sociology).
The report, entitled ‘A Life Free From Fear’ Legislating for Hate Crime in Ireland: An NGO Perspective’,presents the experiences and perspectives of NGOs in Ireland which deal on a regular basis with the challenge of hate crime, that is crime motivated by hostility or prejudice towards a person because of some defining characteristic such as ethnicity.
This is an important issue of international topicality. It can also be controversial. Hate crime is a source of significant harm for victims, their communities and indeed society more broadly. The authors highlight international research showing that periods of economic recession can be particularly fertile ground for the development of increased levels of hate crime.
The authors seek to investigate whether hate crime is an issue in Ireland through exploring the experiences of frontline NGOs, 14 of whom participated in the study; with a view to assessing the adequacy of our legislative response to hate crime.
The report begins by examining what is meant by hate crime – essentially it may come in two forms.
The first of these is known as ‘expression offences’, ie crimes where the use of threatening, abusive or insulting speech is itself prohibited through criminal law. In such offences, the speech must be intended or likely to stir up hatred.
In Ireland, the 1989 Prohibition of Incitement to Hatred Act criminalises this sort of expression offence; but our experience has been that this Act has been largely ineffective, with few prosecutions or convictions. Seamus Taylor for the Equality Authority described the Act as having an ‘expectations gap’ and a ‘frustration gap’ since communities expected it to deliver much more in the way of addressing racism.
The second type of hate crime may be called ‘aggravated offences’, that is where criminal offences such as assault or criminal damage are committed with a prejudiced, hostile or bigoted motivation towards the victim, again based on a particular characteristic such as ethnicity or religion.
It is this type of crime upon which the researchers have focused – and there is no legislative provision dealing with aggravated motivation currently in Ireland.
The controversy arises, as the report indicates, because the criminal law does not generally punish motivation. There is a longstanding view that a person who commits theft out of hunger may be convicted on the same basis as a person who commits theft out of greed; the only differentiation may be in the sentencing, where hunger would clearly be a mitigating factor in reducing sentence.
The NGO experiences reported here show that this view is now outdated, and that some legislative structure for dealing with this type of hate crime is required. Indeed, there is now an international imperative to bring in legislation specifically dealing with aggravated motivation offences; more and more countries internationally are now introducing this type of law.
All but one of the NGOs who participated in the Report stated that hate crime is a specific issue of concern for the individuals and groups for whom they advocate. The majority of NGO participants identified their clients' experiences of hate crime as being associated primarily with either racism against ethnic and racialised minorities, and migrants broadly, or homophobic and transphobic hate towards LGBT persons.
The types of hate incident identified by NGOs included physical violence, sexual abuse, verbal abuse and harassment. Hate crime is understood as a 'message crime', that is, its function is to send a message, not only to the direct victim, but also to the group, on the basis of whose membership they were targeted. As such, hate crime has multiple indirect victims, in addition to those directly victimised.
The researchers most usefully indeed present alternative models for legislating, drawn from different jurisdictions. They examine the ‘demonstrated hostility’ model used in England, and the ‘hostile motivation’ model in the Canadian law, as well as looking at a ‘sentence enhancement’ model whereby racial motivation is regarded as an explicit aggravating factor in the sentencing decision.
They make some very insightful comments about these different models, pointing out that the ‘demonstrated hostility’ model in English law might fall foul of our Constitutional due process requirements if introduced here, since it is over-broad in scope and would permit conviction of an aggravated offence through mere demonstration of hostility towards the victim.
By contrast, the more tightly-drawn Canadian approach requires evidence that the base offence itself was actually motivated by bias or prejudice – a higher hurdle for prosecutors to clear.
The sentence enhancement model, which is used in Northern Ireland for example, is more limited again in that it applies only to sentencing; however, again it can be used either solely for those offences where hostile motivation has been shown; or the broader category of offences where hostility has merely been demonstrated.
Ultimately, the report favours a hybrid approach, advocating the creation of four new hostility based offences (with a test of hostile motivation used, as in Canada), assault aggravated by hostility; criminal damage; harassment and public order breach. A sentence enhancement provision should also be introduced, to be applied to any offence where a court finds hostile motivation to have occurred.
The report also addresses the question of categories of victim – itself again a contentious issue, recommending that the protected categories should reflect but not be confined by those protected characteristics set out in the Equality legislation – to include membership of the Traveller community, disability, sexual orientation or gender, marital or family status, age, race and religion.
The Life Free from Fear Report shows that hate crime is a very real phenomenon in Ireland today, and one which affects many different communities. People are targeted because of their sexual orientation, gender, including gender identity, race, religion, disability, age, ethnicity, including membership of the Traveller Community and sometimes for a combination of these personal characteristics.
The report shows that the current legal regime is incapable of addressing hate crime, and that legislative change is required. Crucially, the report also presents useful proposals for the appropriate legislative model, and this is particularly welcome.
I greatly welcome this report, which will make very important reading for legislators, and I commend the researchers again for their great work.