The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 (the "Bill") will, if enacted in its current form, be a radical update to the law in relation to hate crime. In this Insight, we consider what the Bill seeks to achieve, including in particular the corporate offences envisaged, as well as its legislative journey since its publication on 1 November 2022.
Purpose of the Bill
The Bill will expand the regulation of hate crimes in Ireland considerably. Currently, a hate speech offence can be found in the Prohibition of Incitement to Hatred Act 1989 (the "1989 Act"). The Bill will repeal the 1989 Act in its entirety, to introduce the following new offences
(i) incitement to violence or hatred on account of certain defined protected characteristics;
(ii) condonation, denial or gross trivialisation of genocide, war crimes, crimes against humanity and crimes against peace; and
(iii) preparing or possessing material likely to incite violence or hatred on account of protected characteristics.
The changes envisaged by the Bill will belatedly1 give effect to Ireland's obligations under the Council Framework Decision 2008/913/JHA (the ''Framework Decision'') of 28 November 2008 on combating forms and expressions of racism and xenophobia through criminal law. The Framework Decision was prepared by the Council on the basis of a proposal from the European Commission and opinion of the Parliament. The primary goal of the Framework Decision was to counter racism and xenophobia.
Freedom of Expression
The offences under the Bill require the relevant conduct to be carried out with the intention of inciting violence or hatred. To protect freedom of expression, section 11 of the Bill also expressly provides that a communication (material or behaviour) involving the criticism or discussion of a protected characteristic (as defined in the legislation) will not of itself amount to inciting violence or hatred.
Protected characteristics, as defined in the legislation, are;
e. nationality or ethnic origin,
h. sex characteristics,
i. sexual orientation, or
Notably, for the offence of condonation, denial or gross trivialisation of genocide, war crimes, crimes against humanity and crimes against peace (as provided for in section 8 of the Bill) protected characteristics are those listed at (a), (b), (c), (d), (e), (f), or (g) above.
The draft legislation also provides certain prescribed defences including the material in question being a "reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse".
Offences by Corporate Bodies
One of the key features of the Bill is the provision for offences by corporate bodies. Under section 13 of the Bill, a company / corporate body will be liable where an offence is committed for its benefit and the commission of the offence was "attributable to the failure, by a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, to exercise… the requisite degree of supervision or control" of the person who committed the offence.
Where a body corporate is found to be guilty of an offence under the Bill, it will be liable on conviction on indictment to a fine. The level of fine applicable is dependent on the offence committed.
If a body corporate commits an offence, and is proved that it was committed with the "consent or connivance or…wilful neglect" of a director, manager, secretary or other officer (or a person purporting to act in that capacity), the relevant individual will be guilty of an offence. This also applies where the corporate body is managed by its members. The individual, guilty of such an offence under the Bill, faces imprisonment and / or a fine as provided for under the relevant section.
The current iteration of the Bill provides a defence for the corporate body to show that it took all reasonable steps and exercised due diligence to avoid the commission of the particular offence. Therefore, to establish and maintain such a defence, companies will need to have the appropriate processes and procedures in place. There are similar provisions under the Criminal Justice (Corruption Offences) Act 2018 (our discussion of the wide-reaching implications of that act can be found here) and under the Criminal Justice (Theft and Fraud Offences) Amendment Act 2021 (access our update summary here).
The Bill was passed by the Dáil in April 2023 and is currently at Committee Stage in the Seanad. It is clear from Dáil debates from the beginning of July that the Minister intends to conclude the Bill in the Seanad. Nevertheless, amendments to the Bill are expected.
We will continue to monitor the progress of the Bill and provide further updates in due course.
Please get in touch with Karen Reynolds, Michael Byrne or your usual Matheson contact, should you require further information in relation to the material referred to in this paper. Visit our Commercial Litigation and Dispute Resolution and Fraud, Asset Recovery and White Collar Crime pages to stay up to date with the latest updates, articles and briefing notes.
1The transposition deadline for the decision was 28 November 2010