On 1 November 2022, a legislative proposal was sent to the Parliament of Ireland to introduce fresh criminal liability rules for alleged hatred crimes. The “Incitement to force or Hatred and hatred Offences” Bill provides for a number of crucial changes to Irish criminal law.
It involves introducing fresh types of crime, importantly expanding police powers, tightening penalties for perpetrators and amending respective another normative acts. In the future, the legislative proposal is intended to replace the current legislation, as laid down in the Prohibition of Instigation to Hatred Act 1989, from more than 30 years ago.
Definition of "hate" and "protected features" as discriminatory grounds
‘Hate’ (hatred) under the draft law is defined as ‘hate towards a individual or group of persons in a country or elsewhere due to their protected characteristics or any of these characteristics’ (Article 2(1)). ‘Protected characteristic’ includes 10 discriminatory conditions, including race (race), colour (colour), nationality (nationality), religion (religion), national or cultural origin (national or cultural origin), origin (descent), socio-cultural sex (gender), sex characteristics (sex characteristics), sexual orientation (sexual orientation) and disability (disability Article 3(1)). It is worth noting that 1 of the discriminatory grounds, gender, is defined in Article 3(2)(e) as ‘the sex of the individual or sex which the individual expresses as the preferred sex or with which the individual identifies and includes transgender persons and sex another than male and female sex’.
In this context, it is crucial to emphasise the vague definition of the word "hate" where the grounds for criminal work have been based on the subjective feelings of circumstantial persons, an example of which may be the mention in the draft law to "the preferred sex".
New crimes
The draft proposes the establishment of fresh types of prohibited acts, including:
offences of incitement to force or hatred of persons due to their protected characteristics (Article 7);
crimes of tolerance, denial or gross trivialisation of genocide, etc., against persons due to their protected characteristics (Article 8);
offences involving the preparation or possession of materials likely to incite force or hatred against persons due to their protected characteristics (Article 10).
In accordance with Article 7(1), the offence referred to in that provision is simply a individual who ‘transmits material to the public or behaves in a public place in specified a way as to incite force or hatred against a individual or group of persons on account of their protected characteristics or any of those characteristics, and who does so with the intention of inciting or hating force or hatred against that individual or group of persons on account of those characteristics or any of those characteristics’.
Who, on the another hand, is considered to be a "hateful" public opinion? Under the draft law, it is simply a individual who ‘displays, publishes, distributes or distributes material, shows or reproduces material, or makes material available to the public or parts of the public in any another way, including through an information system’ (Article 6(2)). However, the material itself is defined as ‘all that can be viewed, read or listened to, straight or after conversion from data stored in another form’ (Article 6(1)).
In the event of a conviction under simplified procedure (summary convicton), the offence is to be punishable by fines or imprisonments of up to 12 months or both together. On the another hand, in a conviction procedure on the basis of an indictment, specified a individual may be sentenced to fines or imprisonment of up to 5 years or both together (Article 7(5)).
It is noteworthy that the provision in Article 7(1)(b) states that criminal liability is the work of the individual who commits the act there, even if he did not intend to do so (such force or hatred is thus instigated).
Offence of preparing or possessing material likely to incite force or covered against persons on account of their protected characteristics will be permitted by a individual who “is preparing or possessing material that can incite force or hatred towards a individual or group of persons due to their protected characteristics or any of these characteristics, with the intention of transferring this material to society or part of society, whether alone or otherwise”. This besides applies to individual who “prepares or possesses specified material with the intention of inciting force or hatred against specified a individual or group of persons due to these qualities or any of these qualities or being unaware of whether specified force or hatred is thus instigated” (Article 10(1)).
In this case, specified an offence will be punishable (in case of a simplified conviction) by a fine or imprisonment of not more than 6 months or both. In the event of conviction on the basis of the indictment of the case, he or she is to be liable for a fine or imprisonment not exceeding 2 years.
Greater police powers
The bill besides provides for a crucial increase in the scope of police powers, in the event of suspected offences identified there. This applies, inter alia, to search warrants for places and persons, which may take place in circumstantial cases "with reasonable usage of force" (Article 15(2)(a). The police are besides to be able to seize and detain certain items, including computers, if this is related to the crimes described in the Act (Article 15(2)(c). Interestingly, in the second case, an officer holding a warrant issued by a court will be entitled to request from a individual present in the searched place ‘to transmit any passwords essential for its [computer] operation and any encryption keys or codes essential to decrypt information available by the computer’ (Article 15(4)(i).
In April 2023, the draft was adopted by a large majority by Dáil Éireann, a chamber of lower Irish Parliament. The proposal is now resisting in the Irish legislature (Seanad Éireann). Legislative work has been greatly delayed, which is linked to the controversy surrounding the proposals contained in the draft law. fresh reports from local media (beginning July) show that the controversial task will not return to Parliament before the summertime break, which may consequence in a deficiency of actual anticipation of its adoption in this parliamentary term.
Freedom of speech threatened
However, the project, developed by Justice Minister Helen McEntee, has been generating many controversy from the very beginning, focusing primarily on the vague definition of "hate" or the anticipation of drastic restrictions on freedom of speech. It is worth noting that 1 of the discriminatory grounds for criminal liability for hatred crimes is the ideologically defined word "gender". Under this concept, there is also, on the basis of a commented draft law, a subjective feeling of certain persons expressing their ‘sexual preference’ or ‘sexual identity’.
Therefore, if this act is adopted as it stands, it will be subject to the criminal liability of certain persons on the basis of unclear and unspecified grounds, thereby threatening fundamental rights and civilian liberties. Importantly, the law may besides be contrary to acts of global law to which the Republic of Ireland is party. In particular, the global Pact on civilian and Political Rights, in peculiar Article 19(2) of the Agreement, should be taken into account. Under that provision, “everybody has the right to express his or her opinion freely; this right includes the freedom to seek, receive and disseminate all information and views, regardless of national boundaries, orally, in writing or in print, in the form of a work of art or in any another way according to his or her choice.”
Moreover, there may be doubts about the severe penalties proposed in the bill for the perpetrators of the prohibited acts. Therefore, given the experience from another countries, where akin government under the pretext of combating “the speech of hatred” has been and continues to be utilized against various “unrighteous” persons or groups, the Irish bill should be assessed powerfully negatively.
author: Patryk Ignaszczak – analyst of Ordo Iuris global Law Center
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