Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank Deputies Margaret Murphy O'Mahony and Fiona O'Loughlin for introducing this Bill. No one could disagree with the purpose of the Bill which aims to ensure that where an offence is committed against a person that is motivated by prejudice or hate relating to the victim's race, colour, ethnic origin, disability, sexual orientation or transgender identification, motivation will be taken into account for the purposes of determining sentence.

The issue of legislating for crime motivated by prejudice against another person has increasingly been the subject of discussion. It has been argued that introducing such provisions recognises the impact such crimes have on victims. While I would agree with that view, I believe aspects of the Bill before the House require further consideration. I refer, for example, to provisions that could give rise to unintended operational difficulties in the prosecution of these offences.

Currently, if an offence such as assault or criminal damage is committed against a person based on his or her race, religion, sexual orientation or other identity characteristics, the offence is prosecuted as an offence under the wider criminal law. The judgment of the Court of Appeal in DPP v. Elders in 2014 unequivocally states that racist motivation is an aggravating factor for the purpose of sentencing. It is open to a judge to consider any other bias motivation as an aggravating factor in the same way. In effect, if in the course of a criminal trial it is demonstrated that some form of bias motivated the offence, a judge may consider that in sentencing. This is in line with the requirement on all sentencing courts when determining a sentence to take into account both the nature of the offence and the circumstances of the offender. Under the provisions of the Bill before the House, bias motivation cannot be taken into account unless it is stated in the indictment or complaint and it is proven that the offence is so aggravated. I ask the Deputies to consider that this could in fact be a significant restriction on existing judicial discretion.

I would like to mention some other potential issues with this legislation. The Bill, as drafted, applies to all offences on the Statute Book. It appears to be modelled on the UK Crime and Disorder Act 1998, which specifies the criminal offences to which it applies, namely, assaults, criminal damage, public order offences and harassment. I believe the more targeted approach of identifying the specific offences to which the Bill would apply is preferred and would avoid any possible problems in prosecution. Clearly, the Bill could not be applied to the offence of murder, for which the mandatory sentence is imprisonment for life. It is also in respect of successfully prosecuting offences that I have other concerns relating to the Bill. As I have mentioned, the Bill requires the aggravation by prejudice to be proven, whereas it is currently sufficient for bias motivation to be demonstrated during the trial for a court to take it into account as an aggravating factor for the purpose of sentencing. By establishing a higher standard in this regard, this Bill could limit the circumstances in which bias motivation could be taken into account during sentencing. I also have concerns about how the provision in the Bill whereby "it is proved" that an offence is so aggravated would work in practice. As I have said, the Bill does not create an offence per se. When a trial involves a jury, it makes a determination on the offence with which the person is charged, such as assault. Under what circumstances would the motivation be determined? If it is not a matter for the jury, and I do not see how it can be, it seems difficult to envisage how this would operate in practice. It does not seem appropriate for a court following a verdict of guilty from a jury to state that the offence was aggravated in the manner set out in the Bill where this was not a matter determined by the jury. Clearly, this matter needs to be clarified before the Bill proceeds further.

While this is one of the more challenging aspects of the Bill, I would like to highlight some other issues which are perhaps more straightforward to address. For instance, the Bill provides for the aggravation of sentences for offences based on race, colour, ethnic origin, disability, sexual orientation and transgender identification. I would be grateful if the sponsoring Deputies could clarify whether they considered including other forms of prejudice within the Bill, such as prejudice based on religious intolerance or a person being a member of the Traveller community or prejudice based on a person's gender beyond that provided for under section 4. I mention religion, gender and membership of the Traveller community specifically as these groups are protected under the Prohibition of Incitement to Hatred Act 1989, which prohibits actions which are likely to stir up hatred against particular groups. There seems to be a case that any group identified for the purpose of protection from incitement to hatred should equally be protected under legislation along the lines of the Bill that has been presented today.

I believe there is a difficulty with the vagueness of certain terms in the Bill. For instance, the Bill provides that an offence is aggravated by prejudice if "at the time of committing the offence or immediately before or after so committing, a person evinces towards a victim of said offence, malice or ill-will". The concept of "ill-will" is not defined and is potentially difficult to prove. I also have questions about the definition of "disability" in this Bill, which is based on the definition contained in the Disability Act 2005. I think that definition might be too narrow, given the purpose of this Bill. I am sure this can be considered further by the Deputies who introduced this Bill. I noted Deputy O'Loughlin's confirmation that she would be open to considering amendments and ongoing improvements to the Bill. I am highlighting these issues because I think they need to be considered. Despite the concerns I have highlighted, I do not oppose the principle of this Bill. I raise these issues to highlight areas that merit further consideration if the Bill is to achieve its purpose and not have unintended consequences. I ask the Deputies to reflect on these issues.

The whole question of hate-motivated crime is under consideration in my Department. This involves a review of the Prohibition of Incitement to Hatred Act 1989 as well as ongoing consultation with the European Commission on the State's implementation of the framework decision on racism and xenophobia. The latter is part of the Commission's EU-wide review of the implementation of that particular framework decision. This is in line with recommendations contained in the Law Reform Commission's report on harmful communications and digital safety, which was published last week. While one of the issues addressed in that report concerns online hate speech, the report recommends a wider reform of hate crime, which would include hate speech. I would like it if this Bill and the discussions here tonight could feed into the ongoing work in my Department on this issue.

As I am sure the Deputies present will agree, addressing hate crime and hate speech is not simply a matter of introducing tough legislation. The many people who have responsibility for working on these issues can make a difference by taking a variety of other actions. For example, the Garda racial, intercultural and diversity office has responsibility for co-ordinating, monitoring and advising on all aspects of policing Ireland's diverse communities. This is an ever-increasing issue, given the changing population in this country. In addition, Garda ethnic liaison officers work directly with minority communities at local level. As Deputies are aware, many non-governmental organisations are working on a range of diversity issues. I note the research that has been done by both Deputies on the challenges facing many of the people this Bill is intended to address. Despite the passing of the marriage equality Bill last year, it is clear that we must continue to be alert to ongoing issues of discrimination.

The same point can be made with regard to disability. I am happy to confirm to the House that we will make the further legislative changes that are necessary to sign the UN Convention on the Rights of Persons with Disabilities by the end of this year. The Department of Health has to do some additional work before that will be possible. In addition to the work of the Garda, my Department's office for the promotion of migrant integration is the focal point for the Government's commitment on anti-racism as a key aspect of integration, diversity management and broader national social policy. Later this year, we will publish the Government's integration strategy, which has already been the subject of a great deal of consultation. I think that will be a very important marker of the State's approach to the question of integration and the kind of issues we need to address. I thank the Deputies for bringing forward this Bill. I welcome the debate we are having today. I repeat that we do not intend to oppose the Bill.

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