The landmark Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022, which amends the incitement to hatred law and mandates tougher sentences for crimes motivated by hate, is being considered in the Seanad on Tuesday, having completed its journey through the Dáil.
The Bill – which creates new, aggravated forms of certain existing criminal offences such as assault, where those offences are motivated by hatred against people with a “protected characteristic” such as race, gender, religion, sexual orientation or disability – has attracted criticism in unlikely quarters, including from Elon Musk and Donald Trump jnr, son of the former US president.
Concerns have been expressed about a number of issues, including the definition of hatred to be used, and about the use of a demonstration test of proof in hate crime cases. This test requires that a perpetrator demonstrates hatred towards a member of a protected group or characteristic at the time of an offence being committed.
The Bill does not actually define hatred or hate offence – the task of interpretation has been left to the courts. This is not unusual, as judges routinely interpret terms. Nevertheless, I believe this is a lost opportunity to clarify “hatred” and “hate”. Defining key terms in the Bill would provide clarity to all impacted by the law. With clear definitions, we all know what we are dealing with.
Legislators have options. They can stick with the Bill as it is, and leave it to the courts to define hatred. But I believe a preferred option would be to distinguish between hatred and hate offence within the Bill. There could be, in effect, two definitions: a definition of hatred for incitement-to-hatred purposes and, secondly, a definition of hate for hate offences.
For guidance, we could look to neighbouring jurisdictions in Northern Ireland and in England and Wales to consider what exists and what is being developed. In Northern Ireland, hate crime is defined in terms of hostility. Hate is taken as either a hostility motivation, or a demonstration of hostility. The same definition applies in England and Wales. There have been recent hate crime law reviews in both.
The Northern Ireland review (2020) defines a hate crime as “a criminal act based on the perpetrator’s hostility, bias, prejudice, bigotry or contempt against the actual or perceived status of the victim or victims”. That is a useful and clear definition. The opportunity exists for our legislators to learn from the developing landscape in Northern Ireland. Having the same definition on both sides of the Border would be in keeping with the spirit of the Belfast Agreement; hate crime law is equality law in the criminal law context.
The Government is proposing a legal test of proof that is based on either a hate motivation and/or a demonstration of hate.
In my view – formed over 25 years working in this area, including as a former director responsible for hate crime policy in the DPP’s office in England and Wales, as well as based on my research – this is a very important and welcome element in the Bill. It will be central to its effectiveness.
NGOs working with communities affected by hate crime in Ireland have called for this test of proof. However, some concerns have also been expressed that it will result in inappropriate cases being brought.
In fact, evidence from neighbouring jurisdictions doesn’t bear these concerns out. The data shows that a demonstration test of proof makes hate crime law implementable in a proportionate, effective way. There has been no flood of inappropriate hate crime cases. Our legislators must note the evidence from England and Wales and from Northern Ireland.
Take England and Wales. For the year 2018-19 in the Crime Survey for England and Wales, which is a government national victimisation survey, there were approximately 190,000 perceived hate incidents identified by people. In the same year there were 105,900 hate crime incidents reported to the police, and there were 12,828 cases dealt with by the DPP. Of cases dealt with by the prosecution service, the conviction rate was 84.3 per cent; the guilty plea rate was 76.1 per cent.
The figures for hate crime are now very similar to wider regular crime – in 2018 -19 the conviction rate for all crime was 84per cent and the guilty plea rate was 76.7per cent. The one area of exception is disability, where hostility can manifest differently, leading to inappropriate responses.
This data overall points to an embedded, effective and proportionate response, in line with the criminal justice system response to crime overall.
This evidence should reassure legislators that it does not lead to a flood of low-level convictions. Rather, it points to a crime category with proportionate levels of reporting, prosecution and conviction, which are akin to those for wider crime.
As we legislate in this area, we need to keep communities who may be living in fear of hate in our minds’ eye. They have made their views known to legislators. They want effective hate crime law, including a demonstration test of proof.
Right now, we need evidence-informed policy that delivers justice. We need to stay focused on the issue of the reality of hate and on the prize – namely, the prospect of an effective, proportionate response to deliver justice to victims, defendants, and wider society.
Providing definitions of hatred and hate, along with the proposed inclusion of the demonstration test of proof, would make what is already a good hate crime Bill better.
Dr Seamus Taylor is head of Applied Social Studies, Maynooth University and former director of equality and diversity at the Crown Prosecution Service, England and Wales. His book Hate Crime Policy and Disability was published by Bristol University Press in 2022