Submission to Hate Crime Review Consultation
Read the Northern Ireland Human Rights Commission’s submission to Hate Crime Review Consultation.
Submission to Hate Crime Review Consultation
Date produced May 2020.
Below is a summary of the recommendations.
You can also download the full document through the links provided below.
The Northern Ireland Human Rights Commission (NIHRC):
2.11 in response to questions 2 and 3, recommends that specific hate crime legislation is designed in line with the international obligations to prevent, prohibit, prosecute and protect and takes into account best practice from other jurisdictions in the UK.
2.12 in response to questions 2, 3 and 35, advises that the obligation to protect means that hate crime laws should be designed to reassure communities and individuals who may be particularly vulnerable, while at the same time reflecting that some behaviours will fall short of hate crime. The NIHRC recommends that any hate crime law must reflect the need for hate ‘signal incidents’, which fall short of hate crime, to be recorded and support put in place for the victims of such incidents.
2.13 in response to questions 2, 3 and 35, recommends that the principle of legal certainty is reflected in any hate crime law and that a list of personal characteristics or protected grounds is enumerated and applied across all hate related offences to ensure the law reflects the international human rights obligations to prevent, prohibit, prosecute and protect.
2.14 in response to questions 27, 28, 29 and 30, recommends that the hate crime law include a “by reason of” threshold to ensure that the laws reflect the harm done to victims and their communities through being targeted by reason of an immutable characteristic or fundamental aspect of their identity. Consideration should be given to making sure that the adoption of this test is not so broad that it becomes ineffective, particularly in the context of gender. The Commission recommends that a form of words, such as that suggested by paragraph 10.20 of the consultation document, is included to ensure that gender can be and is adopted as a protected characteristic, if the “by reason of” threshold is applied.
2.15 in response to questions 27, 28, 29 and 30, recommends that legal definition of hate crime is set out in a ‘general 4 interpretation for the purposes of the act’ section and that ‘hate’ covers ‘bias, hostility, prejudice, bigotry and contempt’ and is broad enough to include prejudices or stereotyped information relating to a protected characteristic.
3.7 in response to questions 7 and 8, advises that international human rights standards do not prescribe a specific model for hate crime law. Hate crime law will be human rights compliant when it provides an effective deterrence. The NIHRC recommends that consideration be given to implementing the statutory aggravation model in NI, as evidence from other jurisdictions demonstrates that it is more effective in responding to hate crime than the enhanced sentencing model alone.
3.8 in response to question 21, advises that the human rights law requires that hate crime law provides an effective deterrence and recommends that evaluations of the effectiveness of the statutory aggravation models in Scotland and in England and Wales to ensure that the model that applies in NI reflects best practice in other jurisdictions and is in line with international human rights standards.
4.13 in response to questions 5 and 6, advises that the international human rights standards allow for some discretion as to the model of hate crime law, but require that it is effective, proportionate and dissuasive and respond effectively to the current shortcomings in the application of the current hate crime model in NI.
4.14 in response to questions 8 and 9, recommends developing specific sentencing guidance for hate crimes with an enhanced sentence to reflect the aggravating dimension of the offence to ensure that the deterrent effect is effective, proportionate and dissuasive.
4.15 in response to questions 8 and 9, recommends that judicial independence is safeguarded and that any statutory duty relating to specific sentencing guidance for hate crimes is framed as a ‘due regard’ principle, rather than a more onerous duty.
4.16 in response to questions 4, 10 and 20, recommends that where a hate crime results in an enhanced sentence, the court should make it clear that this is to ensure the deterrent effect of the sentence is maximised.
4.17 in response to questions 4, 10 and 20, recommends that any hate crime consideration should be recorded to ensure data collection is consistent, extensive and disaggregated across all stages of the criminal justice process, including sentencing and on the criminal record viewer.
5.8 in response to questions 22, 23, 24, 25, and 26, recommends that the particular characteristic which is the focus of any hate crime should be recorded to ensure data collection is consistent, extensive and disaggregated across all stages of the criminal justice, including sentencing and on the criminal record viewer.
5.9 in response to questions 22, 23, 24, 25, and 26, recommends that all parts of the criminal justice system should ensure that the collection and disaggregation of data is integrated at every stage of the process and all criminal justice agencies and personnel should be effectively trained on the importance of data collection and recording to monitor trends and evaluate performance.
5.10 in response to questions 22, 23, 24, 25, and 26, recommends that a comprehensive training regime be implemented for all agencies and personnel across the criminal justice system to share this data and ensure that training of all personnel is informed by this data.
5.11 in response to questions 22, 23, 24, 25, and 26, recommends that that a regular review of the hate crime measures, which engages with groups affected and victims, be implemented to ensure their continued effectiveness across the criminal justice system from reporting to prosecution and sentencing.
6.6 in response to questions 11, 12, 13, 14, 15, 16, 17, 18 and 19, recommends that the hate crime legislation draws specifically on the full range of equality and non-discrimination safeguards in local and international law and ensures that all protected 6 characteristics derived from the international human rights standards are recognised within the law.
6.15 in response to question 11, recommends that the NI Executive adopt appropriate legislative and policy measures to protect women from all forms of gender based violence, including through technology mediated and online settings and that gender be included as a protected characteristic in any hate crime law, with a particular emphasis on the harm of misogynistic hate crime, to assist in removing all impediments to full and equal participation of women in all areas of life. 6.16 in response to question 11, recommends that in defining hate crime on the grounds of gender, it is not defined in gender neutral terms, but is given a definition which recognises the unequal power structures within society and recognise the particular harms experienced by all women and girls, non-binary and gender queer people and by men and boys who experience multiple discriminations.
6.21 in response to question 12, recommends that the hate crime law recognises the specific harm of transphobic hate crime for transgender people living in Northern Ireland and recognises transgender as a protected characteristic in any hate crime law.
6.24 in response to question 13, recommends that the hate crime law recognises the specific harm of hate crime on grounds of being intersex and recognises being or perceived as intersex as a protected characteristic in any hate crime law.
6.30 in response to question 14, advises that the international human rights standards do not specifically call for hate crime legislation to cover ‘age’ as a particular characteristic, however it does recognise the particular aggravated harms experienced by younger people and older people and calls on states to address these harms through appropriate legal and policy responses.
6.35 in response to question 15, advises that the international human rights standards do not specifically call for hate crime legislation to cover ‘victim vulnerability’ as a particular characteristic, however it does recognise the specific harm of hostility to vulnerable people and offences motivated by exploitation of vulnerability and calls on states to address these harms through appropriate legal and policy responses.
6.38 in response to question 16, recommends that the hate crime law recognises the specific harm of hostility to homeless people as a particular characteristic and that this definition is broad enough to encompass people who do not have a secure home.
6.44 in response to questions 52 and 53, recommends that the hate crime law recognises the specific harm of sectarianism as a particular characteristic of hate crime under the umbrella of racism and racial discrimination and uses this opportunity to develop a statutory definition of sectarianism in line with the international human rights standards on racism and racial discrimination.
6.50 in response to questions 18 and 19, advises that intersectional discrimination is not currently recognised in NI equality law and that the international human rights standards recognise the multiplying impact of experiencing discrimination and hostility on two or more particular characteristics. The NIHRC further advises that international human rights law does not specifically call for hate crime legislation to cover intersectional harms, however it does recognise the specific harm of hostility on grounds of two or more particular characteristics and calls on states to address these harms through appropriate legal and policy responses.
6.57 in response to question 17, recommends that the hate crime legislation establishes a clear list of particular characteristics that reflects the needs for specific protections for protected groups in international human rights law and that the residual clause of other “analogous protected characteristics” is included in the hate crime law to allow the law to reflect the need for evolution.
6.63 in response to question 17, recommends that in light of the acute levels of anti-Traveller racism and to ensure the recording of 8 disaggregated data, that the hate crime law recognises the specific harm of hostility to Travellers, Roma and other non-settled people is recognised it as a particular characteristic of hate crime.
6.68 in response to question 17, recommends that in light of the serious and harmful impact of antisemitism, and to ensure the recording of comprehensive disaggregated data, that the hate crime law recognises the specific harm of antisemitism as a particular characteristic of hate crime.
6.73 in response to question 17, recommends that in light of the serious and harmful impact of Islamophobia, and to ensure the recording of comprehensive disaggregated data, that the hate crime law recognises the specific harm of islamophobia as a particular characteristic of hate crime.
7.20 in response to question 32, recommends that consideration is given to removing the dwelling defence from article 9(3) of the Public Order (Northern Ireland) Order 1987. Given the gravity of the harm which is caused by the hate speech designed to stir up hatred and arouse fear to individuals and communities that share protected characteristics, it is immaterial whether this harm is caused inside a dwelling or in another environment. This does not remove the imperative for any law on incitement to hatred to be read compatibly with the obligations which flow from Articles 8, 10 and 17 of the ECHR.
7.21 in response to questions 36 and 37, recommends that any defence of freedom of expression is guided by the balancing of rights under Articles 10 and 17 of the ECHR. These require that any defence is in accordance with law, in pursuance of a legitimate aim and no more than is necessary in a democratic society. Consideration should be given to the removal of specific defences for categories of hate expression from any incitement law, as their inclusion could have the unintended consequence of protecting hate speech that reaches the threshold of incitement targeted against specific individuals or communities.
7.22 in response to question 38 and 39, recommends that the legal definition of incitement to hatred is comprehensive and reflects the need to balance freedom of expression with the rights of others, taking into account the limitation imposed by Article 17 of the ECHR, that Article 10 of the ECHR cannot be used to protect hate speech and incitement that seeks to undermine the purpose of the ECHR and to extinguish the enjoyment of rights of others.
7.23 in response to question 33, recommends that the assessment of the complex balance between Articles 10 and 17 of the ECHR and the rights of persons and communities who are the targets of hate speech, alongside the test to ensure that any prosecution meets the criminal threshold, is made by the Director of Public Prosecutions before any such prosecution is undertaken.
7.24 in response to question 40, advises that as this is a excepted matter, the review should consider making recommendations that social media companies should have clear policies that reflect international human rights standards and that any law, which seeks to impose liability for failure to remove online hate speech, must meet the standards of necessity and proportionality and that all decisions are recorded to ensure data collection is consistent, extensive and disaggregated across all protected characteristics. In addition, consideration should be given to recommending a legal obligation on social media companies to report hate crime perpetrated on their networks to local police services.
7.25 in response to questions 46, 47, 48, 49 and 50, recommends that any hate crime law should apply to the online context and be adapted to address the specific way in which online hate is manifested and to give reassurance to communities and individuals who may be particularly vulnerable to online hate crimes. When applying hate crime law to digital content, the right to freedom of expression must be safeguarded and any interference should be subject to the principles of proportionality and necessity.
8.11 in response to questions 60, 61, 62 and 63, recommends that a victim-centred approach is embedded across the criminal justice 10 system to prevent secondary victimisation, re-traumatisation or stigmatisation. This requires that effective steps are taken to ensure that there is an awareness of specialised information, advice and support services which are available to victims of hate crime through the Hate Crime Advocacy Service.
8.12 in response to questions 60, 61, 62 and 63, recommends that the Hate Crime Advocacy Service continue its role in supporting victims through the criminal justice process and that it be expanded in scope and placed on a permanent footing with specialist advocates appointed to support victims from each of the particular characteristics covered in the hate crime legislation and across all parts of NI, especially in rural areas where victims can feel especially isolated.
8.13 in response to questions 60, 61, 62 and 63, recommends that the Hate Crime Advocacy Service and the criminal justice system is accessible to all victims of hate crime, which requires ensuring that special needs, mental capacity, age-appropriateness, gendered and other particular characteristics are taken into account and reasonably accommodated.
8.14 in response to questions 64 and 65, recommends that consideration be given to protecting the identity of vulnerable complainants in the criminal justice system where necessary to prevent further victimisation.
8.15 in response to questions 54, 55, 56, 57 and 58, recommends that any use of restorative justice processes is based on international best practice and has appropriate safeguards for the victim built in to the system, including any safety considerations and ensuring the free and informed consent of the victim, which may be withdrawn at any time. No victim should be required to engage with restorative justice procedures.
8.16 recommends that consideration is given to the establishment of a protective security funding scheme for places of worship and other religious buildings which are, or are at a high risk of being, targeted by hate crimes.