Sharon Keogan (Independent) | Oireachtas source

"Go woke or go broke" appears to have been the strategy of Fianna Fáil in recent years. This is another example of that pathetic strategy. Devoid of any true guiding principles, languishing on an historic low of 11% in the opinion polls and registering a paltry 8% support from under 35s, it looks as if Fianna Fáil is going broke. It is being devoured by Sinn Féin on its left and by its new partners, Fine Gael, on its right-hand side.

I will turn back to this fundamentally flawed Bill, the purpose of which is to create a new criminal offence of hate crime and superimpose it onto specified existing criminal offences. Section 2(1) states:

An offence is aggravated by hate crime against a relevant individual if— (a) at the time of committing the offence, or immediately before or after doing so, a person displays racism, homophobia, xenophobia, anti-religious prejudice or disability hate crime towards a relevant individual, or

(b) the offence is motivated (wholly or partly) by racist, homophobic, xenophobic, anti-religious prejudice or disability hate crime towards a relevant individual.

That section tacks the label of "hate crime" onto existing crimes as an aggravating factor for the prosecution. The vagueness, breadth and open-ended nature of this provision is quite staggering. For example, racism includes things such as antagonism. Antagonism, which is extremely subjective, would be made criminal if anyone claimed it.

The definition of "xenophobia" encompasses an accused person having a "fear of people from different cultures", meaning that fear is also a potential hate crime under the Bill.

Homophobia is defined as including "negative and uninformed feelings towards homosexuality or individuals who are identified as, or perceived as being lesbian, gay, bisexual or transgender". No matter what one thinks about this Bill, how are negative and uninformed feelings to be proven beyond a reasonable doubt?

What type of evidence is going to be used shift the evidential burden onto the accused? That question is answered in the definition of "hate crime", which includes "any offence that is perceived by a victim or any other person, to be wholly or partially motivated by prejudice against a relevant individual". That is a problematic provision. It means the accused must go into evidence, having their privilege against self-incrimination and the right to remain silent brushed aside based on the subjective perception of the victim or any other person.

The definition of a "relevant person" in section 1 includes:

... individuals who are identified on the basis of their asylum or refugee status, nationality, religion, (including no religion), colour, race, disability, ethnicity (including members of the Traveller and Roma communities), gender identity and expression, sexual orientation, transgender identity, sex characteristics or age or perceived age ...

This is also disturbing and ill-defined. "Age or perceived age" could potentially refer to everyone on planet earth. Whose perception is this based on? Does not everyone on planet

earth have sex characteristics? Nationality, religion, or no religion, colour or race can all apply to everyone on the planet, making virtually every relevant offence a potential hate crime.

The definition of "gender identity and expression" appears to omit people who decide that they are non-binary. Do they not also deserve the hate crime victims' status?Regarding sentencing of the accused convicted of a hate crime, section 3(1) states:

Where is it proven or demonstrated to the satisfaction of the court, that a motivating factor for the commission of a relevant offence (as set out in the Schedule to this Act) was aggravated by hate crime against a relevant individual, the court shall, on conviction ...

What on earth does the phrase "demonstrated to the satisfaction of the court" mean? Have those introducing this Bill invented a new, alternative standard of proof in criminal cases involving hate crimes? Whatever happened to proof beyond a reasonable doubt?

The penalty to be imposed by the trial judge under section 4 is an unwarranted intrusion by the Oireachtas in judicial discretion when sentencing. It tries to compel a trial judge to impose a maximum sentence on someone convicted of a hate crime. If this is supposed to act as a deterrent, it will not. All the evidence from the field of criminology points to the likelihood of being apprehended as a deterrent and not the potential sentence.

Section 5, like the rest of the Bill, is pointless at best. Trial judges already have considerable latitude when sentencing to make probation orders with a wide range of conditions as they deem appropriate to the offender, the offence and the facts of the case. It is my understanding, for example, that as the law stands, a trial judge could, if he or she deemed it appropriate to the facts of the particular case, stipulate that an offender must do a course while on probation to educate them about racism. Similarly, this entire Bill is unnecessary. To explain, as the law stands, if there is evidence of racism that is relevant to, and admissible in, a particular case of assault, for example, it can be presented in court by the prosecution for the judge and jury to consider, as appropriate.

Not only is this Bill poorly drafted, ill-conceived nonsense on stilts, it is, equally, a manifestation of poisonous identity politics. It is a shameful attempt to corrupt existing criminal law with this toxic, incoherent ideology for the sake of personal political gain. For this reason, I will oppose the Bill in its current form and vote against it on Committee Stage.