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Article 3.2.b of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022

Barrista-r

There is probably a pretty straightforward answer to this but I lack the requisite background to know the answer, so I figured I'd ask here.

I was wondering about the interpretation of Article 3.2.b of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022.

Specifically with regard to the "protected characteristic" referred to as "descent" in article 3.2.b Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022:

"(b) references to “descent” include references to persons or groups of persons who descend from persons who could be identified by certain characteristics (such as race or colour), but not necessarily all of those characteristics still exist."

If we were to take a literal interpretation of this, in line with the theory of evolution, it would include every single person on the planet, because all humans on Earth are descendants of the earliest people from Africa. These earliest people from Africa would literally be "persons who could be identified by certain characteristics (such as race or colour)" and for many of us, "not necessarily all of those characteristics still exist".

I understand that Article 5 of the Interpretation Act 2005 does allow for deviation from a strictly literal interpretation:

"5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of [the Oireachtas or Parliament]

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

Now, there is no ambiguity in the wording of the article, whatsoever. It is really quite clear and unambiguous. The idea of ambiguity only arises if someone is either uneducated with regard to the history of human evolution or if they believe that some "persons who descend from persons who could be identified by certain characteristics (such as race or colour), but not necessarily all of those characteristics still exist", are to be excluded but not others.

I am wondering what the "plain intention" of the proposed legislation might be, with regard to the aforementioned article.

Is the "plain intention" of this article to ensure that everyone is treated equally before the law or is the "plain intention" that certain descendants of persons (Africans) who could be identified by certain characteristics (such as race or colour) but for whom not necessarily all of those characteristics still exist are not to be included?.

If it is the intention to exclude some of the aforementioned descendants, can it be ascertained from the act as a whole which descendants are to be excluded? Is there a cut-off criteria where certain descendants are included, but their subsequent descendants are not? Can this also be ascertained from the Bill as a whole?

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Peregrinus

I think you may be overthinking this.

Or, I may be missing your point, in which case (a) I apologise, and (b) please feel free to correct me.

What cl. 3 does is to define "protected characteristic"; your protected characteristics include (among many other things) your descent.

Your key point is that "descent" is expansively defined and that " it would include every single person on the planet". Yes, everybody has a descent. I don't think anyone is excluded; why would they be? And, if you want to go back that far, everybody has a descent from Africa.

All we're doing up to this point is defining terms and explaining concepts. So far, we've said nothing about the significance of protected characteristics in general, or of descent in particular. For that, we need to look at clauses 7, 8 and 10, which create offences. E.g., cl. 7 makes it an offence to incite violence or hatred against a person or a group of persons on account of a protected characteristic.

Since everybody has a descent, everybody is potentially a victim of this offence. If I incite hatred against you on account of your descent, I commit the offence and you are the victim.

Note that it does not matter that other people have the same descent and I do not incite violence/hatred against them. The offence does not require that I should incite violence against all people who have a particular descent, or that I should always incite violence against people of a particular descent; it's enough that, on the occasion to which the charge relates, I incited violence against a person or a group of persons on account of their descent.

This isn't a novel approach; it's how the equality legislation already works. If I refuse you a job because e.g. you are a woman, it does not matter that there are other women that I have employed; it is enough that I have discriminated against you on the grounds of your sex.

So, I'm not seeing a problem here. But, as I say, I may be missing your point.

Barrista-r

I completely agree with you, however, I've had a TD tell me that such an interpretation would be an "absurdity".

So I'm not sure they actually understand the legislation they are trying to pass.

Also, given the lack of a definition of hatred in the bill and the fact that the Gardaí rely on an individual's perception of "hatred" it seems like a bill that is wide open to abuse.

Peregrinus

There's a definition of "hatred" in clause 2. It's very similar to the definition of the same word in the Prohibition of Incitement to Hatred Act 1989 s. 2, which has been on the statute book for (obviously) 34 years, SFAIK without any problems resulting. Is there evidence that the 1989 Act has been abused?

Did this nameless TD mention how (s)he thought the Bill would be interpreted? I'm afraid I still don't understand what the problem here is supposed to be.

Barrista-r

The definition in both is "hatred means hatred", which is obviously meaningless.

When we take Garda policy into account and their working definition of "hatred", the potential for misuse of the legislation is pretty stark:

Any criminal offence which is perceived by the victim or any other person to, in whole or in part, be motivated by hostility or prejudice, based on actual or perceived age, disability, race, colour, nationality, ethnicity, religion, sexual orientation or gender.

https://www.garda.ie/en/crime/hate-crime/what-is-hate-crime-.html

Basically, anything anyone claims is motivated by hate is a hate crime i.e. the crime of "incitement to hatred". This includes so-called far-right "persons who descend from persons who could be identified by certain characteristics (such as race or colour), but not necessarily all of those characteristics still exist".

Peregrinus

Can you give me a concrete example of the kind of thing you are talking about? Because, I admit, I am currently bewildered.

Barrista-r

https://www.boards.ie/discussion/comment/121217596#Comment_121217596

Take any person who gets branded "far right". They can report to the Gardaí that this is incitement to hatred and they perceive this as motivated by hatred of their protected characteristic of "descent". Since Garda policy says that a hate crime (in this case "incitement to hatred") is based solely on the perception of the individual reporting it, would this legally have to be processed as a hate crime?

The bill makes it a crime even where someone is being reckless as to whether such violence or hatred is thereby incited, and no actual hatred has to be incited.

Peregrinus

https://www.boards.ie/discussion/comment/121221590#Comment_121221590

No, the gardai would not be legally obliged to process this as a hate crime.

There's a few points here.

The first is that the elements of any criminal offence are laid down by the legislature. The Gardai cannot add to them or subtract from them. In the case of this Bill, the cl. 7 offence of incitement to hatred on account of a protected characteristic involves actually saying or doing something that is actually likely to incite hatred which is actually on account of a protected characteristic, and actually intending this outcome or being reckless about it. The state of mind of the accused is relevant (intention or recklessness) but the victim's perceptions don't enter into it all, one way or the other. Nothing the Gardai say can change that

The second point is that, if you read the Garda statement, they are not claiming or pretending to change that. The statement is not talking about the cl. 7 offence at all (or about the existing offence under s. 2 of the 1989 Act). The Garda statement is about when an "ordinary" offence — like, say, assault, or criminal damage — will be classed as "hate crime". This is a completely different question.

What are the consequences of an assault or a case of criminal damage being classed as hate crime by the Gardai? As far as trial, conviction, sentence, go, there are no consequences at all. The elements of the offence don't change, the maximum penalty doesn't change, the standard of proof doesn't change. The consequences are for the way in which the crime is investigated; a Garda diversity officer will be involved to support the victim; the investigation may receive higher priority. And the crime will likely be counted as a hate crime in the annual statistical information published by the Gardai.

In the example you give, where someone is described as "far right" and they say they perceive this to be motivated by a hatred of their descent, the first issue that arises is, has any offence been committed? Is it a crime to say that (say) Nigel Farage is on the far right? Without substantial additional facts, it is not. And if there isn't a crime, it can't possibly be a hate crime. So this won't be prosecuted, and won't turn up in any statistics.

But let's suppose a different example. Suppose I beat you up, while yelling "Fascist bastard!". Assault is a crime, obviously. You say you perceive that I assaulted you out of hatred for your descent. Is this hate crime? Will it attract the attention of a diversity officer, and get included in hate crime statistics? I think that (because of your claim) it will attract the attention of a diversity officer, and the first question they will ask you is why you perceive the assault to be motivated by hatred of your descent.

On the face of it, the evidence suggests that it was motivated by hatred of your political opinions (or of political opinions which I wrongly ascribed to you). I don't think the Garda statement means, or is intended to mean, that the victim's perception, or a perception of a third party, is conclusive, or trumps the reality. If there's no rational basis for your belief that my true motivation is hatred of your descent, I think the Garda record is going to be that the assault was investigated as a potential hate crime but was found not to be one. (It's still a crime, though.)

(But suppose I am wrong, and the guards do class this as a hate crime, merely because of your paranoid beliefs. How does this affect me, the accused? It doesn't affect me at all, is the answer. I'm still going to be charged with assault. The burden of proof the prosecution must attain to get a conviction is unchanged. The same defences are available to me. If convicted, I still face the same sentence.)

Now take another example. Suppose I encourage other people to beat you up, on the grounds (I say) that you are a Fascist bastard. Would this be the cl. 7 offence offence of incitement to hatred on the grounds of a protected characteristic? To answer this question you look at cl. 7. Let's assume that encouraging people to beat you up is indeed incitement to hatred, so the only question is whether being a Fascist bastard is a protected ground. On the face of it, it isn't. But you could possibly mount an argument that your fascist bastardry is in fact an expression of your descent (in the way that, say, speaking English is an expression of your ethnic heritage) and that it is so understood by the people who are incited to hate you.

Your belief that this is so isn't conclusive; it has to actually be so. So you're going to have to produce evidence for your belief, and that evidence is going to have to persuade the court, beyond reasonable doubt. Otherwise I'm going to be acquitted. How the guards class the offence is irrelevant; the court literally could not care less about it.

coylemj

https://www.boards.ie/discussion/comment/121221590#Comment_121221590

I could brand Paul Murphy TD as 'far left' but if anyone tried to invoke that clause (hatred of their protected characteristic of "descent") you're quoting, the case for a prosecution wouldn't have a leg to stand on. Because PM sure as hell didn't acquire his political beliefs 'by descent'. His father was a senior exec with a US multinational and his son got the best private education that money could buy.

PM might have picked up his political leanings from the flouride in the water supply (joke) or by associating with leftie activists in the third level college he attended but he sure as hell didn't get them 'by descent'.

Barrista-r

https://www.boards.ie/discussion/comment/121221844#Comment_121221844

Thank you for the detailed reply. I am trying to explore concerns I have about how broadly worded the legislation is and that it would be would be open to exploitation by bad faith actors, as well as potentially criminalising ordinary citizens. There tends to be a focus on obvious offences such as assault or criminal damage, but it is more the crime of "incitement to hatred" which I think raises potential issues.

I think it's important to note that "incitement to violence" and "incitement to hatred" are two distinct offences - one of the stated aims of the Hate Offences bill is to establish "hate crimes" as a particular offence - so the example of encouraging other people to beat someone up would be "incitement to violence". "Incitement to hatred" would be more to do with "hate speech". There is a tendency to focus on the clear and obvious examples, which we can all agree are likely to to be offences under the legislation, but it's the less obvious examples which I think need to be considered.

With regard to the Garda policy it uses the term "criminal" offence, not "ordinary" offence. Is "ordinary offence" a legal term?

The definition of hate crime in this Strategy is: "Any criminal offence which is perceived by the victim or any other person to, in whole or in part, be motivated by hostility or prejudice, based on [protected characteristics]”.

The definition is in line with best international practice and the McPherson "perception based test”.

(Emphasis added.)

An Garda Síochána Diversity and Integration Strategy 2019-2021 (9/10/19)

Given that "incitement to hatred" is a crime would that fall under "criminal offence"?

Just a note on the McPherson "perception based test” (highlighted above).

The Garda HQ Directive No 04/2007 retained perception as the criterion for recording a racist discriminatory motive. This criterion, was developed initially in England and Wales in the 1999 Macpherson Report...England and Wales’ College of Policing, in its 133 page long 2014 Hate Crime Operational Guidance, explains the perception test as follows:

“For recording purposes, the perception of the victim, or any other person … is the defining factor in determining whether an incident is a hate incident, or in recognising the hostility element of a hate crime. The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception. Evidence of the hostility is not required for an incident or crime to be recorded as a hate crime or hate incident … If the facts do not identify any recordable crime but the victim perceived it to be a hate crime, the circumstances should be recorded as a non-crime hate incident and not a hate crime.”

Recognising, Addressing and Confronting Hate Crime: Submission to the Commission on the Future of Policing by Amanda Haynes and Jennifer Schweppe Hate and Hostility Research Group University of Limerick (pdf)

So, if the Gardaí follow the McPherson perception test, as it is outlined there, they would be instructed not to ask why you perceive the statement to be motivated by hatred of your descent.

Would they then be obliged to process that as the crime of "incitement to hatred"?

Barrista-r

https://www.boards.ie/discussion/comment/121228668#Comment_121228668

I never knew that about Paul Murphy. Interesting.

Peregrinus

OK. Just to clarify: in general, all offences are criminal offences, or crimes. Offence, criminal offence, crime — they all mean the same thing.

In this context, when I talk about an "ordinary" offence, I mean an offence that isn't necessarily or usually motivated by hatred — so, assault, fraud, criminal damage, etc.

These things become "hate crimes" when they are motivated by hatred of the victim on account of a protected characteristic. So, I vandalise your shop — criminal damage. But, I vandalise your shop because you're Jewish — this is now a hate crime. But the charge is still criminal damage. It's not a different crime — it's the same crime, committed with a motivation of hatred.

As to the "perception of the victim" test — the quote you give yourself makes it clear that the test applies only in relation to how a crime is investigated and recorded. It has no implications at all for charge, trial, conviction or sentence. In particular, when I am charged with criminal damage for vandalising your shop, the prosecution does not have to allege, much less prove, that I vandalised your shop because you are Jewish. A motivation of hatred is not an element of the offence of criminal damage.

The test was adopted as a matter of police procedure in the UK in the wake of the Stephen Lawrence case as part of a strategy to prevent hatred-motivated offences from not being investigated or recorded as such because of the failure of police or other agencies to recognise or accept the phenomenon.

You are still confusing the perception test, used to determine whether an ordinary offence should be investigated/recorded as a hate crime, with the elements of the new offence of "incitement to hatred". Unlike with criminal damage, hatred is an element of that offence and, like every other element of any offence, it must be pleaded and proven on evidence, beyond all reasonable doubt.

Note that, in the incitement to hatred offence, what the prosecution has to prove is not that the accused was motivated by hatred, but that what he said was likely to incite hatred. The motivation of the accused is irrelevant and, even if it were relevant, there is no presumption in the legislation that, if the accused perceives a motivation of hatred, there was such a motivation. The guards may presume that, but the DPP will not; a court will not; a jury will not.

So, your question: would the Gardai be obliged to process your hypothetical crime as "incitement to hatred"? They would not.

First, the statement you link to is not a law dictating what the Gardai are obliged to do. It's a website informing the public about what, as a matter of policy, the Gardai do. It doesn't create any obligations. They can change or depart from their policy at any time.

Secondly, even if they don't depart from their policy but apply it rigorously, what it indicates is not that they would deal with this as the crime of incitement to hatred; it indicates that they would investigate it as a "hate crime" — i.e. a crime motivated by hatred. But, as already pointed out, to be a crime motivated by hatred, it must first be a crime. It won't be the crime of "incitement to hatred" unless what the accused said is, in fact, likely to incite hatred on the basis of your descent, which is a separate question from whether the accused is motivated by hatred.

Think about it: suppose I abuse you in the street, using all kinds of foul language, making vile threats, and alleging that you regularly commit a variety of disgusting crimes. You and I have a history, and you believe — perhaps with good reason — that my behaviour is motivated by hatred of your (say) religion. But what I actually say to you in the street makes no reference at all to religion. Bystanders who witness the incident and hear what I say but do not know our history would be unaware of my bigoted motivation.

Because of your perception, this will be investigated as a "hate crime" — i.e. a crime motivated by hatred of your religion. But it can't be charged as incitement to hatred because what I said to you is not likely to incite people to hate you on account of your religion, which is an essential element of the offence. It might be charged as some other crime of which hatred is not an element — disorderly conduct, threatening behaviour, that kind of thing — and, if so, would be recorded as a hate crime.

The exact same facts, except that this time my tirade of abuse does include frequent derogatory references to your religion, and claims that it is your religion that leads you to commit your supposed crimes. Now I can be charged with incitement to hatred (because what I said is, in fact, likely to incite hatred on a protected ground) and, separately, this would be recorded as a hate crime (because of your perception that it was motivated by hatred of your religion).

Barrista-r

https://www.boards.ie/discussion/comment/121230645#Comment_121230645

Thanks for the clarification re: "ordinary" offence and "criminal" offence. That's what I had been thinking, but I didn't want to presume.

I think it might be helpful to avoid references to ordinary offences for which it must be determined if there is a motivation of hate, because it's strictly the crime of "incitement to hatred" I'm trying to get at. You said:

You are still confusing the perception test, used to determine whether an ordinary offence should be investigated/recorded as a hate crime, with the elements of the new offence of "incitement to hatred". Unlike with criminal damage, hatred is an element of that offence and, like every other element of any offence, it must be pleaded and proven on evidence, beyond all reasonable doubt.

Note that, in the incitement to hatred offence, what the prosecution has to prove is not that the accused was motivated by hatred, but that what he said was likely to incite hatred. The motivation of the accused is irrelevant and, even if it were relevant, there is no presumption in the legislation that, if the accused perceives a motivation of hatred, there was such a motivation.

You seem to have jumped ahead here to a criminal trial, which assumes that the incident has been recorded as a crime. That is also worth discussing and may well be the case if Garda policy is followed, but, let's take a step back to the Garda process. As you mention, hatred is an element of the crime of "incitement to hatred".

So, the Gardaí get a report of incitement to hatred on the basis of the protected characteristic of "descent". How do they determine if "incitement to hatred" has been committed? The bill says that "hatred is hatred", which isn't much help. It also says that no hatred actually need be incited and no intent is required, only recklessness. Garda policy states a hate crime is any criminal offence which is perceived, in whole or in part, to be motivated by hostility or prejudice; Garda policy follows the McPherson perception test which suggests that the person's perception be taken as fact and not questioned; and given that "incitement to hatred" is a criminal offence, assuming they follow Garda policy, would it be reasonable to conclude they would process the incident as a hate crime?

Victor

https://www.boards.ie/discussion/comment/121217264#Comment_121217264

The problem is that the 1989 act hasn't been used enough.

Peregrinus

https://www.boards.ie/discussion/comment/121232263#Comment_121232263

You say you're only interested in the incitement to hatred offence, but you keep dragging the conversation back to the McPherson test used to determine whether an ordinary offence is a "hate crime". Stop doing this. The McPherson test is not relevant here.

I'll say this one more time, as clearly as I can.

The McPherson test is used to decide whether an incident is to be recorded by the Guards as having been motivated by hate. It is not used for any other purpose. In particular it is not an evidentiary presumption — you cannot rely on the McPherson test in court to establish any fact.
With regard to the proposed incitement to hatred offence, a motivation of hatred is not an element of the offence. There is no need for the prosecution to prove that the accused was motivated by hatred and, even if they did need to prove that, for the reason just pointed out they could not rely on the McPherson test to do so.
So stop talking about the McPherson test. Dismiss it from your mind. Spurn it, and shakes its dust from your feet.
What the prosecution do need to prove, for the offence of incitement to hatred, is that what the accused said is likely to incite hatred on the grounds of a prohibited characteristic. They need to satisfy of the jury (or the judge, in a summary trial) of this, beyond reasonable doubt.

Before we get to trial, as you point out, there is investigation and charge. You ask how, in that phase, the guards determine if incitement to hatred has been committed. They don't, is the answer. That's not their job; determining whether an offence has been committed is the job of the courts. What the guards/the DPP do is ask themselves whether they have evidence that will satisfy a court beyond reasonable doubt that the offence has been committed. If they don't have that evidence, they don't charge anyone — it is oppressive and an abuse of power to charge someone in circumstances where you don't expect to secure a conviction.

Because the McPherson test will get you nowhere in court, the Guards/the prosecution do not consider it at all when considering whether to bring a charge, or what charge to bring. The look at the evidence; the McPherson test is not evidence.

Will they "process the incident as a hate crime"? If the victim says that the accused was motivated by hatred based on one of the protected grounds, and if the guards have evidence likely to secure conviction of a crime, which is an entirely separate question, it will be recorded as a hate crime. This is the same, regardless of what the actual offence is. It's likely that, in most cases where the facts would support a charge of incitement to hatred, the victim is going to think that the accused was motivated by hatred, so I imagine that in the great majority of cases in which the evidence supports an "incitement to hatred" charges, the offence will be recorded as a hate crime. But if there isn't sufficient evidence to secure a conviction of incitement to hatred, there'll be no charge and so no record of a hate crime, no matter how passionately the victim believes the accused was motivated by hatred. In such a case there will be a PULSE record of a "non-crime hate incident", or some such language.

On the definition point — if a word is used in legislation but not given a special definition, then the word has its ordinary meaning. The ordinary meaning of "hatred" is "a feeling of intense dislike or aversion towards a person or thing; an emotion in which such a feeling is experienced; loathing; hostility; malevolence". I think most jurors will know what "hatred" means but, if they don't, the judge can explain it to them. In this case, as you know, it isn't just a likelihood of inciting generalised hatred that must be shown; it's a likelihood of inciting hatred on account of a protected characteristic.

Barrista-r

https://www.boards.ie/discussion/comment/121235852#Comment_121235852

Where are you getting the information that the McPherson test can't only be used to determine if an ordinary crime should be recorded as a hate crime and definitively won't be used to determine if the hate crime of incitement to hatred has been committed?

On the one had you are saying that the Gardai don't determine if the crime of incitement to hatred has been committed, that is a matter for the courts but on the other you are saying the guards and the DPP must satisfy themselves that they have enough evidence to satisfy a court beyond a reasonable doubt. That brings us back to the question of what evidence they will consider in the case of incitement to hatred.

I think it's important to remember that the crime of incitement to hatred is extremely nebulous to begin with. As you outline, "hatred" is an internalised feeling and the crime of incitement to hatred is saying something which would elicit this feeling in someone - that in itself puts it squarely in the realm of perception.

If I call someone a "far right nazi", do you think that is likely (or merely possible) to incite feelings of love, compassion, or hatred towards that person?

Peregrinus

From the material that you posted. It's clear that the McPherson test is used to characterise the motivation of the actor. There is no suggestion that it is used to determine what action the actor did, and it's explicit that does not determine whether the action done was a crime or not.

And this reading of the material that you posted is backed up by the terms of the Bill that will create the offence. The Bill does not create any presumption either about the motivation of the actor or about the likely effect of the action. In principle the Oireachtas could have legislated, e.g., that it is presumed that words will incite hatred if the victim perceives them as hateful, but it didn't legislate that.

Because they're sane, the only consider evidence that is admissible in court. The McPherson presumption is neither evidence nor admissible in court.

The perception of the jury. This is pretty standard. Lots of questions that go to juries have a mental element — the jury needs to decide if someone had a particular intention, or was negligent, or was reckless, or was honest, or truthful, or reliable. Or, in a libel case, they have to consider whether the words spoken/written would incite hatred, ridicule or contempt. Or they have to consider what interpretation a hypothetical reasonable person would put on certain statements or certain events. Etc, etc. This happens every day in the courts. In this case, the jury will have to consider whether a communication proven to have been made is likely to incite hatred of someone on one of the protected grounds. That's not radically different from the kind of judgments juries are called on to make every day.

If I call someone a "far right nazi", do you think that is likely (or merely possible) to incite feelings of love, compassion, or hatred towards that person?

It's not likely to incite feelings of love (except perhaps on the part of another far-right Nazi). It is more likely to incite feelings of hatred. But not hatred on one of the protected grounds; political opinion is not a protected ground. So (without further facts) calling someone a far-right Nazi or a far-left Stalinist or anything of the kind is not going to support a charge of incitement to hatred.

Barrista-r

https://www.boards.ie/discussion/comment/121241427#Comment_121241427

Just a question on site function here: would you be able to tell me how to reply to specific parts of a persons post, as in how do you isolate specific statements? I can't seem to see how to do that.

Barrista-r

https://www.boards.ie/discussion/comment/121241427#Comment_121241427

On the question of the use of the McPherson test with regard to the crime of incitement to hatred, would the following (posted above) point to its wider application, beyond solely being used to determine if an ordinary crime is to be recorded as a hate crime?

England and Wales’ College of Policing, in its 133 page long 2014 Hate Crime Operational Guidance, explains the perception test as follows:

“For recording purposes, the perception of the victim, or any other person … is the defining factor in determining whether an incident is a hate incident, or in recognising the hostility element of a hate crime.

Here it is applied to non-crimes to record them as hate incidents but also to ordinary crimes to determine if they are hate crimes. I don't see any reason to think it wouldn't also be used with regard to incitement to hatred, given that incitement to hatred is a criminal offence, and given there is a clear policy to centre the reporting persons perception.

Again, the issue is that hatred is undefined in the bill and is entirely subjective, so the question would be, when it comes to crime of incitement to hatred, who decides if incitement to hatred (based on a protected characteristic) has occurred? Again, you jump to the criminal trial by suggesting that it is the perception of the jury which will decide, but for the case to come before a jury, a charge must first be brought by the Gardaí. I guess the question is, what would count as evidence, for the Gardaí, that hatred specifically (as opposed to compassion) has been incited or could recklessly have been incited - what would be the evidence they believe would be admissable in court?

As mentioned, there is a clear policy to centre the perception of the person making the report with regard to both crime and non-crime incidents, and not leave that down to individual Gardaí or the Gardaí themselves. I don't see any real reason to think this won't also be applied to the crime of incitement to hatred.

It also sounds as if there will be harsher penalties for "aggravated" forms of ordinary crimes, which would mean that a person's perception holds evidentiary weight: Hate Crime Bill Includes Tougher Sentences. Would this mean the McPherson test is admissible in court?

With regard to calling someone a "far right nazi". Let's say I'm shouting this indiscriminately at a rally or counter protest and someone who isn't involved in either is passing by, they see many different people some a) persons who descend from persons who could be identified by certain characteristics (such as race or colour), and for whom all of those characteristics still exist, as well as b) persons who descend from persons who could be identified by certain characteristics (such as race or colour), but not necessarily all of those characteristics still exist, and they hear me indiscriminately shouting "far right nazi". Towards which of these people(s) a) or b) do you think hatred would be incited?

Peregrinus

https://www.boards.ie/discussion/comment/121245196#Comment_121245196

I'm doing this on a PC. It may be different on a phone or tablet. The way I do it is this:

Don't use the "quote" button on the post you are replying to. That quotes the entire post, and does not allow you to subdivide it.
Instead, copy and paste the part of the post you want to reply to - say, a single paragraph - and drop it into the "leave a comment" box at the bottom of the page. Put in a paragraph return after what you have just pasted in.
Then place your cursor anywhere in the paragraph and right-click. A "paragraph" mark appears to the left.
Click on that and it offers you a couple of options, one of which is indicated with inverted commas. Click on the inverted commas and it offers you "quote". Click on "quote" and the paragraph now appears as a quote.
Go back into the "leave a comment" box, place your cursor at the bottom and start typing your reply.

Peregrinus

If the crime of incitement to hatred is committed, then the McPherson test will be used to decide whether to categorise it as a hate crime (and I would imagine that in most or all cases it will be categorised as a hate crime). But it won't be used — it can't be used — to determine whether the crime of incitement to hatred has been committed in the first place.

Suppose I call you a far-right Nazi. On the face of it, that's not the crime of incitement to hatred, right? You go to the police and (a) report that I have done this, plus (b) say that you perceive me to have done it on account of my hatred for your gender identity. Does that mean the police will now treat this as an incidence of incitement to hatred?

No, it does not. The crime of incitement to hatred does not require on my being motivated by hatred of you on account of some protected characteristic. It requires that the words which I spoke should incite others to hate you on the grounds of some protected characteristic. The words I spoke do not do that; they don't refer to your gender identity at all, and nobody hearing them is given any information about your gender identity or encouraged to have any particular reaction to it. They are certainly not incited to hate you on account of your gender identity. So, there's still no crime here (or, at most, if there is a crime, it is some other crime — maybe a public order offence?).

If there's no crime, there cannot be a hate crime. Because of your perception of my motivations, this will be recorded as a non-crime hate incident. I won't be charged.

Suppose there is a crime, but it's not incitement to hatred. Common assault, say, because my tirade includes a threat to beat you up. You say that you perceive me to be motivated by hatred of your gender identity, so it gets reported statistically as a hate crime. What impact does that have on my sentence?

The statistical categorisation of the crime has no impact at all — the court won't even know about it, and certainly won't care. But under ordinary principles of sentencing, the court does consider the impact of the crime on the victim. There's no presumption at play here — the sentencing court makes no assumption about my motivation. But if your perception is sincere, and — this is important — if it has magnified the harm done to you, if you have suffered more because you believe you have been victimised on account of your gender identity or your religion, ethnicity or whatever (rather than just being the wrong man in the wrong place when I decided to make an arse of myself) yeah, that's something the court will take in to account in deciding what sentence is appropriate. Perhaps you now feel vulnerable and insecure in a way that you wouldn't if you didn't think you had been targeted on account of your gender identity, for example.

But that's not the McPherson principle at work; that's just ordinary sentencing principles that have been operating for decades. And the key issue here is not your perception of my motivation, but the effect the crime has had on you. Note that I may have been genuinely unaware of your gender identity, and it may not have featured at all in the motivation for my crime. The adverse effect my crime has had on you is still a relevant factor in sentencing, and your heightened feelings of vulnerability, etc, are important.

None of them. If you're at a rally ranting about Nazis, I'd assume you're ranting about Nazis, but I wouldn't assume this was directed at people who happened to be in the vicinity at the time. I wouldn't think you were inciting protests against anyone other than generic Nazis.

If you're at a counter-protest ranting about Nazis, I'd assume your comments referred to the protestors that you're counter-protesting against. But I wouldn't assume you were referring particularly to the female protestors, or the gay protestors, or the straight protestors, or the married protestors, or the Norwegian protestors, or the protestors ultimately descended from a common ancestor who lived in the African rift valley. I might agree with you or disagree with you that the protestors were Nazis, but I don't see that protected characteristics enter into it at all. I certainly wouldn't think I was being incited to hate anybody on account of a protected characteristic.

Barrista-r

I'm doing this on a PC. It may be different on a phone or tablet. The way I do it is this:

Don't use the "quote" button on the post you are replying to. That quotes the entire post, and does not allow you to subdivide it.

Cheers. I think I have it now.

Instead, copy and paste the part of the post you want to reply to - say, a single paragraph - and drop it into the "leave a comment" box at the bottom of the page. Put in a paragraph return after what you have just pasted in.

Then place your cursor anywhere in the paragraph and right-click. A "paragraph" mark appears to the left.

Click on that and it offers you a couple of options, one of which is indicated with inverted commas. Click on the inverted commas and it offers you "quote". Click on "quote" and the paragraph now appears as a quote.

Test

Go back into the "leave a comment" box, place your cursor at the bottom and start typing your reply.

Test