Jonathan O'Brien (Cork North Central, Sinn Fein)
Link to this: Individually | In context

Question 464: To ask the Minister for Justice and Equality his plans to legislate for and define racist crime and introduce racism as an aggravating factor in sentencing. [35849/11]

Alan Shatter (Dublin South, Fine Gael)
Link to this: Individually | In context

The Prohibition of Incitement to Hatred Act 1989 defines "hatred" as "hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation". Under the 1989 Act it is an offence, inter alia, to use words, publish or distribute written material, or broadcast any visual images or sounds which are threatening, abusive or insulting and are intended, or, having regard to all the circumstances, are likely to stir up hatred.

In addition to the foregoing legislation, where criminal offences such as assault, criminal damage, or public order offences, are committed with a racist motive they are prosecuted as generic offences through the wider criminal law. The trial judge can take aggravating factors, including racial motivation, into account at sentencing.

In this jurisdiction, the legislature enacts criminal laws which usually provide for maximum penalties in the form of a fine or imprisonment, or both. In general, there are no statutory sentencing guidelines. Within our legislative framework, the determination of penalty in any individual case is largely a matter for the trial judge, taking case law, including appealed cases, into account. This allows the courts to take all the circumstances of the offence and all the relevant aggravating and mitigating factors into account. The gravity of the offence, the facts surrounding the commission of the offence, the criminal record of the accused and the impact on the victim are among the critical factors taken into account before a sentence is imposed. The judge must take into account the circumstances of the offence and the offender. Also, the Director of Public Prosecutions can appeal against the sentence imposed if he believes it to be unduly lenient.

Moreover, it would be very difficult to justify legislative provision for racially aggravated sentencing without introducing similar provisions to deal with crimes (possibly numerically greater and just as reprehensible) against other vulnerable groups, for example, children and the elderly. In all the circumstances, I have no plans, at present, for statutory guidelines for the purpose of racially aggravated sentencing.