Concerns about hate crime Bill convictions unfounded

• Published date: 13 June 2023
• Publication title: Irish Times (Dublin, Ireland)

The Bill - which creates new, aggravated forms of certain existing criminal offences such as assault, where those offences are motivated by hatred against people with a "protected characteristic" such as race, gender, religion, sexual orientation or disability - has attracted criticism in unlikely quarters, including from Elon Musk and Donald Trump jnr, son of the former US president

Concerns have been expressed about a number of issues, including the definition of hatred to be used, and about the use of a demonstration test of proof in hate crime cases.

This test requires that a perpetrator demonstrates hatred towards a member of a protected group or characteristic at the time of an offence being committed.

The Bill does not actually define hatred or hate offence - the task of interpretation has been left to the courts.

This is not unusual, as judges routinely interpret terms. Nevertheless, I believe this is a lost opportunity to clarify "hatred" and "hate". Defining key terms in the Bill would provide clarity to all impacted by the law. With clear definitions, we all know what we are dealing with.

Legislators have options. They can stick with the Bill as it is, and leave it to the courts to define hatred.

But I believe a preferred option would be to distinguish between hatred and hate offence within the Bill. There could be, in effect, two definitions: a definition of hatred for incitement-to-hatred purposes and, secondly, a definition of hate for hate offences.

For guidance, we could look to neighbouring jurisdictions in Northern Ireland and in England and Wales to consider what exists and what is being developed.

In Northern Ireland, hate crime is defined in terms of hostility. Hate is taken as either a hostility motivation, or a demonstration of hostility. The same definition applies in England and Wales. There have been recent hate crime law reviews in both.

A 'criminal act' The Northern Ireland review (2020) defines a hate crime as "a criminal act based on the perpetrator's hostility, bias, prejudice, bigotry or contempt against the actual or perceived status of the victim or victims".

That is a useful and clear definition. The opportunity exists for our legislators to learn from the developing landscape in Northern Ireland.

Having the same definition on both sides of the Border would be in keeping with the spirit of the Belfast Agreement; hate crime law is equality law in the criminal law context.

The Government is proposing a legal test of proof...