Aodhán Ó Ríordáin (Dublin North Central, Labour)
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Question 533: To ask the Minister for Justice and Equality if he plans to amend the Prohibition of Incitement to Hatred Act 1989 to include racially aggravated harassment or other forms of racial or sectarian incitement; and if he will make a statement on the matter. [4011/12]

Alan Shatter (Dublin South, Fine Gael)
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Under the Prohibition of Incitement to Hatred Act 1989 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. The word "hatred" is defined 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".

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. This includes the harassment offence under section 10 of the Non-Fatal Offences Against the Person Act 1997. A person convicted on indictment for this offence is liable to imprisonment for up to 7 years or an unlimited fine, or both. Also, the court may, in addition to or as an alternative to any other penalty, order that a defendant not communicate with or approach a complainant. This option is also available to the court where it is not satisfied that a person should be convicted of the offence of harassment but believes nevertheless, having regard to the evidence, that it is in the interests of justice to make a prohibition order.

In this jurisdiction, the legislature enacts criminal laws which usually provide for maximum penalties in the form of a fine or imprisonment, or both. 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.

In all the circumstances, I have no plans, at present, to amend the Prohibition of Incitement to Hatred Act 1989.