Pa Daly (Kerry, Sinn Fein) | Oireachtas source

I will speak on amendment No. 10 in this grouping on public order offences. When we consider these amendments, and No. 10 in particular, we should bear in mind that under section 20, the hatred shown against persons on account of their particular characteristics can be used as an aggravating factor in sentencing for certain offences which will include these public order type offences. While of course we are against hate crime and that is a given, having spoken to some criminal law practitioners and having had some experience of it myself over the years, there can often be a situation where there are two of them in it. There could be a situation where there are insults, threats or intimidation or something under section 6 of the Criminal Justice (Public Order) Act, such as threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace would occur.

When considering that, we also have to consider the proportionality of an offence. For example, under section 6 of the Criminal Justice (Public Order) Act, it is triable and is summarily only in the District Court. The maximum penalty is still three months and there is a very low threshold. The danger is that if somebody is convicted in a situation where insults could have been thrown on both sides, but some are protected characteristics and others are not, then two people could be charged arising from the same incident. One person could be charged with a regular public order offence and the other person, who may or may not have started the row, could be charged with a hate crime. They could both be convicted, of course, but one would be convicted of a hate crime.

It would be disproportionate to leave somebody with a conviction for that arising from a public order offence because of the difficulties that would subsequently arise for that person. That is also referenced in the academic paper by academics from UL, which was mentioned by Deputy Paul Murphy. One may try to get through Garda vetting to obtain a job, despite it essentially being a public order offence. This could take place in various different circumstances. It relies on an understanding or a mild promise that the Director for Public Prosecutions would not bring something forward unless they felt it was merited. We are the legislators and if we have concerns about a public order offence becoming a hate crime, it should be stated now. I support Deputy Paul Murphy, particularly in relation to amendment No. 10.

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