NIHRC consultation response to Improving Hate Crime Legislation in NI
Date produced March 2022.
Below is a summary of the recommendations.
You can also download the full document through the links provided.
The Northern Ireland Human Rights Commission recommends:
2.9 the Department of Justice ensures that the threshold for hate crime legislation is of a sufficiently high level when criminalising a person for their behaviours/attitudes leading to hate motivated offences.
2.10 the Department of Justice ensures that the model adopted to address hate crime is an effective deterrent. If this is deemed to be the statutory aggravation model, best practice from other jurisdictions should be evaluated and applied, as appropriate, in NI.
2.20 the Department of Justice creates a unified statutory definition of hate crime that covers bias, hostility, prejudice, bigotry and contempt. Guidance should also be provided on how the different aspects of the definition apply in practice.
2.27 the Department of Justice ensures that the motivators of hate crime included in legislation effectively protect and remedy victims and potential victims from hate crimes in law and practice.
3.5 the Department of Justice includes a statutory aggravator of sectarianism in the proposed hate crime legislation.
3.6 the Department of Justice includes a statutory definition of sectarianism in the proposed hate crime legislation. The Scottish Hate Crime review’s proposed definition of sectarianism is a good starting point. The NIHRC also supports future proofing the legislation to accommodate the inclusion of sectarianism against a broader range of religious beliefs, descent, nationalities or citizenship, if evidence emerges to show this is required.
4.10 the Department of Justice repeals the dwelling defence. It should be replaced with a defence that is reflective of modern day living, including online settings, and ensures rights are only interfered with when it is lawful, necessary and proportionate in pursuit of a legitimate aim.
4.11 the Department of Justice ensures a definition, for example of private conversations, is provided to guarantee that any new defence is effective in practice. To enable the definition to keep pace with future technological advances, it may be most effective for this definition to be set out in guidance, as an explainer to the statutory provision setting out the new defence.
4.16 the Department of Justice does not include the requirement that the Director of Public Prosecutions personally decides whether or not to prosecute stirring up offences within hate crime legislation.
5.10 the Department of Justice ensures that a victim-centred approach is adopted when investigating, prosecuting and remedying hate crimes. Special measures for victims and witnesses during criminal proceedings should be a mandatory consideration. This includes requiring that individual assessments of the vulnerability and needs of victims of hate crime are conducted to determine whether and to what extent special measures are required for that particular victim during criminal proceedings.
5.11 the Department of Justice ensures that there is a presumption against the cross-examination of victims or vulnerable witnesses by the defendant in hate crime cases. The burden should be on the defendant to prove that such cross-examination is required and is not being used in a vexatious way, such as to intimidate.
5.12 the Department of Justice ensures that the Hate Crime Advocacy Service is put on a permanent footing. To ensure all victims of hate crime are adequately supported, this service should be expanded in scope by appointing specialist advocates for each of the protected characteristics set out in the hate crime legislation.
5.18 the Department of Justice consider carefully the provisions of the EU Victims’ Directive within the context of Protocol Article 2 in the development of hate crime legislation.
6.10 the Department of Justice includes gender as a protected characteristic within hate crime legislation. This should adopt a gender-sensitive approach and provide for intersectionality across the full range of protected characteristics.
6.11 the Department of Justice includes misogyny and transmisogyny as aggravating factors in hate crime legislation.
6.12 the Department of Justice ensures that the protected characteristics listed in hate crime legislation can be added to as evidence emerges that this is necessary. However, safeguards should be in place to ensure that the legislation cannot be used for fictitious claims with the purpose of abusing and traumatising a victim further.