Rónán Mullen (Independent) | Oireachtas source

Cuirirm fáilte roimh an Aire Stáit. There are major problems with this legislation. Much has been said already about the flaws in the drafting of the Bill. I must be honest and say it is flawed in its delivery, so to speak, or in its execution. That is rooted, I am sorry to say, partly in the fact that it is also flawed in its conception. It is in places confused, erratic and, ultimately, it would be counterproductive in terms of shaping good law for our country. It gets bogged down in definitional problems that frustrate its aims but would also endanger existing rights such as equality before the law, a trial in due course of law and freedom of expression. For example, the drafters of the Bill appear to be unclear on whether hate crime is an offence motivated by certain prejudice or simply a perceived attitude of prejudice contributing to an offence. If they mean a perceived attitude of prejudice aggravating an offence, which is what I think they mean, they should not be using the term “crime” because this will cause no end of confusion. It seems the drafters want to treat certain thoughts as criminal if these thoughts are part of the background to an offence, for example, assault. The problem is that this takes us into the area of thought crime and the Bill seems to state such thought crime has been committed if any person, not necessarily the victim, alleges it and if the prosecution states it, but there is no reference to any burden of evidence or standard of proof required to establish the thought crime in question.

The Bill also fails to be precise about which categories of person might be victims of hate crime. In one place, hate crime is defined as including age-related prejudice but when it comes to the ability of the court to take hate crime into account, offences against victims of age-related prejudice are excluded.

There is no easy way to say this but I am extremely surprised the Bill has come before us in this form. While we all commend each other’s best efforts and sincerity of approach, we must bear in mind that people are looking in from outside. If we bring forward legislation that, for example, seems to define hate crime as an offence in the interpretation and then says an offence is aggravated by hate crime, which is to suggest that an offence is aggravated by an offence but that second offence is nowhere defined in the legislation, it will lead to criticisms of the Seanad. It is better to deal with these topics by way of a motion to allow us to tease issues out. Even if a Bill then comes forward at the end of that, which some people will accept and some will reject, at least we have to spend less time teasing through the issues. That is my honest opinion on this. The Bill gets bogged down in definitional problems but it also jumps the gun. The public consultation by the Department of Justice on hate speech and the review of the Prohibition of Incitement to Hatred Act 1989 is ongoing. It is my understanding that a separate consultation process is envisaged regarding hate crimes, so there is the prematurity of the issue. There is also the fact there is legislation in Britain, as mentioned by Senator Ward, among others, in sections 145 and 146 of the Criminal Justice Act 2003 in England and Wales. That English legislation does not even mention the phrase "hate crime", yet that phrase is used 25 times in this short Bill, and that worries me. What has happened here is a phrase has been taken from political discourse, namely, "hate crime", and there is an attempt to translate that into a legal concept instead of doing what Westminster did and trying to tackle the issue directly in a focused way. Legislation is one thing but public education in terms of the work of our schools, churches, non-governmental organisations or whoever it is that forms ideas and values is a very different thing from what we eventually craft into legislation. That point cannot be made strongly enough.

I wish to address the concept because there is idealism behind the idea of trying to attack nasty attitudes in our society. I understand what the proponents of the Bill are trying to do, that is, to send a message that prejudice on the basis of a person's race, religion, sexual orientation, etc., should have no place in human behaviour or in Irish society. That is excellent, but the legislation does not do this. It does not create any new category of crime. We have the reality that judges are able to take circumstances into account when sentencing. This seems like something the sentencing guidelines committee of the judicial council should be examining and reporting on before we start issuing new legislative edicts to the Judiciary.

However, most of all, I am worried about the concept underlining this Bill, which is that is there is a hierarchy of victims among people who are equally vulnerable. That would send entirely the wrong message about crime. To take an example, imagine two identical cases of assault causing harm, one is committed against an elderly woman and another is committed against a young member of a community that is an ethnic minority. Most people would think these crimes should receive roughly similar sentences or perhaps that the crime against the elderly person might deserve a harsher sentence in certain circumstances. However, this Bill would suggest the crime against the elderly person could theoretically get a fine and a suspended sentence while the assault against the younger victim would be eligible for the maximum sentence of five years in prison. Is that justice? To take another example, and I say this with great care, the case of a sexual assault against a vulnerable person, where a person carries out an assault against a vulnerable person. They do it because they are racist and the person is a member of an ethnic minority but perhaps they do it because they have a grudge against the victim's family or they have a love of violence. We need to be very careful about creating a hierarchy of victims or a hierarchy of seriousness or odiousness in circumstances like that. That is to where talk of hate crime takes us. Judges must take all sorts of circumstances into account. There may be racism. There may be prejudice based on a person's bodily characteristics or their sexual orientation, perceived or otherwise, but it may also be there are other issues involved such as love of violence or hatred of some other kind that is not defined in this Bill. We need to be very careful about setting up a hierarchy of victims. That is not good in terms of promoting the right kind of attitudes of respect for every person in our society.

The Bill waters down the notion of hate crime because potentially under its provisions every crime committed could be a hate crime. Other Members have addressed this. The Bill defines hate crime as any offence and a crime should be an offence, but elsewhere it refers to hate crime as the attitude underlining the offence.My point is that where the Bill defines hate crime as an offence, the phrase "any offence that is perceived by a victim or any other person" is used. If, therefore, some officious bystander - to borrow a legal phrase from another context - takes a view, can he or she be heard in evidence if he or she believes that the offence in question was wholly or partially motivated by prejudice against a relevant individual? On the face of it, this could mean that all offences listed in the Schedule could be hate crimes or that all offences listed in all circumstances could be seen as hate crimes because, in a country of 5 million people, there will always be at least one person who holds a particular opinion, no matter how reasonable.

Others have addressed the problem relating to the standard of proof here and, in a way, that is one of the most alarming flaws in the Bill. It seems that three things are required for an offence to be deemed to be a hate crime, namely, that there is an underlying offence, that somebody perceives it to have been a hate crime and that the prosecution has to state it in evidence. I have never seen such a low threshold that must be met before the imposition of a maximum sentence.

I thank the Leas-Chathaoirleach for his indulgence and will now conclude. In DPP v. Cagney and DPP v. McGrath in 2007, the late Mr. Justice Adrian Hardiman spoke of "the fundamental value that crimes must be defined with precision and without ambiguity so that the criminal law is certain and specific". I am afraid that this Bill fails that test.