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As passed by Dáil Éireann

Source

https://data.oireachtas.ie/ie/oireachtas/bill/2022/105/eng/ver_b/b105b22d.pdf

AN BILLE UM CHEARTAS COIRIÚIL (GRÍOSÚ CHUN FORÉIGIN NÓ FUATHA AGUS CIONTA FUATHA), 2022

CRIMINAL JUSTICE (INCITEMENT TO VIOLENCE OR HATRED AND HATE OFFENCES) BILL 2022

Bill

entitled

An Act to amend the law relating to the prohibition of incitement to violence or hatred against a person or a group of persons on account of certain characteristics (referred to as protected characteristics) of the person or the group of persons and to provide for an offence of condoning, denying or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace and, in doing so, to give effect to Council Framework Decision 2008/913/JHA of 28 November 20081 on combating certain forms and expressions of racism and xenophobia by means of criminal law; to provide for certain offences aggravated by hatred in the Criminal Damage Act 1991, the Criminal Justice (Public Order) Act 1994 and the Non-Fatal Offences against the Person Act 1997; for those purposes, to provide for amendments of those and other enactments and to repeal the Prohibition of Incitement to Hatred Act 1989; to provide in respect of other offences for hatred against a person or a group of persons on account of certain characteristics (referred to as protected characteristics) of the person or the group of persons to be an aggravating factor in sentencing for those offences; and to provide for related matters.

Be it enacted by the Oireachtas as follows:

PART 1: PRELIMINARY AND GENERAL​

Section 1: Short title and commencement​

  1. This Act may be cited as the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Act 2023.

  2. This Act shall come into operation on such day or days as the Minister for Justice may by order or orders appoint either generally or with reference to a particular purpose or provision and different days may be so appointed for different purposes or different provisions.

Section 2: Interpretation​

  1. In this Act—

    “Framework Decision” means Council Framework Decision 2008/913/JHA of 28 November 20082 on combating certain forms and expressions of racism and xenophobia by means of criminal law, the text of which is set out for convenience of reference in the Schedule;

    “hatred” means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics;

    “protected characteristic” shall be construed in accordance with section 3.

  2. A word or expression that is used in this Act and is also used in the Framework Decision has, unless the context otherwise requires, the same meaning in this Act as it has in the Framework Decision.

Section 3: Meaning of protected characteristic​

  1. In this Act, other than in section 8, “protected characteristic”, in relation to a person or a group of persons, means any one of the following, namely—

    1. race,
    2. colour,
    3. nationality,
    4. religion,
    5. national or ethnic origin,
    6. descent,
    7. gender,
    8. sex characteristics,
    9. sexual orientation, or
    10. disability.

  2. In this Act, in relation to the protected characteristics—

    1. references to “religion” include references to the absence of a religious conviction or belief,
    2. 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,
    3. references to “national or ethnic origin” include references to membership of the Traveller community (within the meaning of section 2(1) of the Equal Status Act 2000),
    4. “gender” means the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female,
    5. “sexual orientation” has the same meaning as it has in section 2(1) of the Equal Status Act 2000,
    6. references to sex characteristics shall be construed as references to the physical and biological features of a person relating to sex, and
    7. “disability” has the same meaning as it has in section 2(1) of the Equal Status Act 2000.

Section 4: Repeal​

The Prohibition of Incitement to Hatred Act 1989 is repealed.

Section 5: Expenses​

The expenses incurred by the Minister for Justice in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of monies provided by the Oireachtas.

PART 2: PROHIBITION OF INCITEMENT TO VIOLENCE OR HATRED​

Section 6: Interpretation and application (Part 2)​

  1. In this Part—

    “information system” has the same meaning as it has in section 1 of the Criminal Justice (Offences Relating to Information Systems) Act 2017;

    “material” means anything that is capable of being looked at, read, watched or listened to, either directly or after conversion from data stored in another form;

    “public place” means any place to which the public have access whether as of right or by permission and whether subject to or free of charge;

    “reasonable and genuine contribution”, in relation to literary, artistic, political, scientific, religious or academic discourse, means a contribution that is considered by a reasonable person as being reasonably necessary or incidental to such discourse.

  2. For the purposes of this Part, a person shall be regarded as communicating material to the public or a section of the public if the person—

    1. displays, publishes, distributes or disseminates the material,
    2. shows or plays the material, or
    3. makes the material available in any other way including through the use of an information system,

    to the public or a section of the public.

  3. For the purposes of this Part, a person’s behaviour shall include behaviour of any kind and, in particular, things that the person says, or otherwise communicates, as well as things that the person does and such behaviour may consist of a single act or a course of conduct.

Section 7: Offence of incitement to violence or hatred against persons on account of their protected characteristics​

  1. Subject to subsections (2) to (4) and section 11, a person shall be guilty of an offence under this section if—

    1. the person—
      1. communicates material to the public or a section of the public, or
      2. behaves in a public place in a manner, that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics, and
    2. the person does so with intent to incite violence or hatred against such a person or group of persons on account of those characteristics or any of those characteristics or being reckless as to whether such violence or hatred is thereby incited.

  2. It shall not be an offence under this section for a relevant service provider, within the meaning of the European Communities (Directive 2000/31/EC) Regulations 2003 (S.I. No. 68 of 2003), to do an act to which Regulation 16, 17 or 18 of those Regulations applies if the requirements of the Regulation concerned for liability not to apply are satisfied.

  3. In any proceedings for an offence under this section, it shall be a defence to prove that the material concerned or, insofar as appropriate, the behaviour concerned consisted solely of—

    1. a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse,
    2. a statement that is the subject of the defence of absolute privilege, or
    3. material or behaviour, as the case may be, that is necessary for any other lawful purpose, including law enforcement or the investigation or prosecution of an offence.

  4. In any proceedings for an offence under this section, it shall be a defence for a body corporate to prove, as respects the communication of material by the body corporate, that—

    1. it has reasonable and effective measures in place to prevent the communication generally of material inciting violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics,
    2. it was complying with the measures referred to in paragraph (a) at the time the offence concerned was alleged to have been committed, and
    3. it did not know and had no reason to suspect at the time the offence concerned was alleged to have been committed that the content of the material concerned was intended or likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics.

  5. A person guilty of an offence under this section shall be liable—

    1. on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
    2. on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

Section 8: Offence of condonation, denial or gross trivialisation of genocide, etc., against persons on account of their protected characteristics​

  1. Subject to section 11, a person shall be guilty of an offence under this section if the person—

    1. communicates material to the public or a section of the public, or
    2. behaves in a public place in a manner, that condones, denies or grossly trivialises—
      1. genocide,
      2. a crime against humanity,
      3. a war crime, or
      4. an act specified in Article 6 of the Charter of the International Military Tribunal,

    where such communication of material or behaviour is directed against a person or group of persons on account of their protected characteristics or any of those characteristics and is done with intent to incite violence or hatred against such a person or such a group of persons on account of those characteristics or any of those characteristics.

  2. A person guilty of an offence under this section shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

  3. In this section—

    “an act specified in Article 6 of the Charter of the International Military Tribunal” means such an act that has been determined to be a crime against peace, a war crime or a crime against humanity, as the case may be, each within the meaning of that Article by a final decision of the International Military Tribunal established by the London Agreement of 8 August 1945 and referred to in Article 1 of the Charter of the International Military Tribunal;

    “Charter of the International Military Tribunal” means the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945;

    “court in the State” has the meaning assigned to “court” by section 3(5) of the International Criminal Court Act 2006;

    “crime against humanity” (other than in the definition of “an act specified in Article 6 of the Charter of the International Military Tribunal”) means any of the acts specified in Article 7 of the Rome Statute where such an act has been determined to be a crime against humanity by a final decision of a court in the State or of an international court or tribunal;

    “genocide” means any of the acts specified in Article 6 of the Rome Statute where such an act has been determined to be genocide by a final decision of a court in the State or of an international court or tribunal;

    “protected characteristic”, in relation to a person or a group of persons, means any of the characteristics specified in paragraph (a), (b), (c), (d), (e), (f) or (g) of the definition of that term in section 3(1);

    “Rome Statute” means the Rome Statute of the International Criminal Court, done at Rome on 17 July 1998;

    “war crime” (other than in the definition of “an act specified in Article 6 of the Charter of the International Military Tribunal”) means any of the acts specified in Article 8.2 of the Rome Statute where such an act has been determined to be a war crime by a final decision of a court in the State or of an international court or tribunal.

Section 9: Provisions relating to offences under sections 7 and 8​

  1. A person may be found guilty of an offence under section 7 or 8 irrespective of whether the communication of material or behaviour the subject of the offence was successful in inciting another person to violence or hatred against a person or a group of persons on account of their protected characteristics (within the meaning of section 7 or 8, as the case may be) or any of those characteristics.

  2. Subject to subsection (3), in any proceedings for an offence under section 7 or 8, where it is proved that the person communicating the material concerned—

    1. knew what the material contained,
    2. understood the meaning of the material, and
    3. made the material available on a platform that is or may be accessible by the public or a section of the public,

    it shall be presumed that the person intended to communicate the material to the public or a section of the public.

  3. In any proceedings for an offence under section 7 or 8, an accused person may rebut the presumption raised in subsection (2) by showing at the time of the alleged offence that he or she did not know the material communicated would be made available to the public or a section of the public.

Section 10: Offence of preparing or possessing material likely to incite violence or hatred against persons on account of their protected characteristics​

  1. Subject to subsections (2) and (3) and section 11, a person shall be guilty of an offence under this section if the person—

    1. prepares or possesses material that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics with a view to the material being communicated to the public or a section of the public, whether by himself or herself or another person, and
    2. prepares or possesses such material with intent to incite violence or hatred against such a person or group of persons on account of those characteristics or any of those characteristics or being reckless as to whether such violence or hatred is thereby incited.

  2. In any proceedings for an offence under this section, it shall be a defence to prove that the material concerned consisted solely of—

    1. a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse,
    2. a statement that is the subject of the defence of absolute privilege, or
    3. material that is necessary for any other lawful purpose, including law enforcement or the investigation or prosecution of an offence.

  3. In any proceedings for an offence under this section, where it is proved that the accused person was in possession of material such as is referred to in subsection (1) and it is reasonable to assume that the material was not intended for the personal use of the person, the person shall be presumed, until the contrary is proved, to have been in possession of the material in contravention of subsection (1).

  4. A person guilty of an offence under this section shall be liable—

    1. on summary conviction, to a class C fine or imprisonment for a term not exceeding 6 months or both, or
    2. on conviction on indictment, to a class A fine or imprisonment for a term not exceeding 2 years or both.

Section 11: Protection of freedom of expression​

For the purposes of this Part, any material or behaviour is not taken to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics solely on the basis that that material or behaviour includes or involves discussion or criticism of matters relating to a protected characteristic.

Section 12: Jurisdiction​

In any proceedings for an offence under section 7 or 8, where the offence was committed by a person using an information system, the offence may be prosecuted as an offence committed by the person within the State—

    1. if the person was in the State when the offence was committed, whether or not the offence involved material hosted on an information system in the State, or
    2. if the offence involved material hosted on an information system in the State, whether or not the person was in the State when the offence was committed.

Section 13: Offences by bodies corporate​

  1. Where a relevant offence is committed for the benefit of a body corporate by a relevant person and the commission of the relevant offence is 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, at the time of the commission of the relevant offence and in all the circumstances of the case, the requisite degree of supervision or control of the relevant person, the body corporate shall be guilty of an offence.

  2. In proceedings for an offence under subsection (1), it shall be a defence for a body corporate against which such proceedings are brought to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.

  3. Where a relevant offence is committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

  4. Where the affairs of a body corporate are managed by its members, subsection (3) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

  5. Subsection (1)—

    1. is without prejudice to the other circumstances, under the general law, whereby acts or omissions of a natural person are attributed to a body corporate resulting in criminal liability of that body corporate for those acts or omissions, and
    2. does not exclude criminal proceedings against natural persons who are involved as perpetrators, inciters or accessories in an offence referred to in that subsection.

  6. A body corporate guilty of an offence under subsection (1) is liable on conviction on indictment to a fine.

  7. In this section—

    “relevant offence” means—

    1. an offence under section 7, 8 or 10, or
    2. an offence of inciting, aiding and abetting, or attempting the commission of an offence referred to in paragraph (a);

    “relevant person”, in relation to a body corporate, means—

    1. a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, or
    2. an employee, subsidiary or agent of the body corporate;

    “subsidiary”, in relation to a body corporate, has the same meaning as it has in the Companies Act 2014.

Where a person is charged with an offence under section 7, 8 or 10, no further proceedings in the matter (other than any remand in custody or on bail) may be taken except by or with the consent of the Director of Public Prosecutions.

Section 15: Search warrants​

  1. If a judge of the District Court is satisfied by information on oath of a member that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under section 7, 8 or 10 is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place.

  2. A search warrant under this section shall be expressed, and shall operate, to authorise a named member, accompanied by such other members or persons or both as the member thinks necessary—

    1. to enter, at any time within one week of the date of issue of the warrant, on production if so requested of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,
    2. to search it and any persons found at that place, and
    3. to examine, seize and retain anything found at that place, or anything found in possession of a person present at that place at the time of the search, that that member reasonably believes to be evidence of, or relating to, the commission of an offence under section 7, 8 or 10, as the case may be.

  3. The authority conferred by subsection (2)(c) to seize and retain anything includes, in the case of a document or record, authority—

    1. to make and retain a copy of the document or record, and
    2. where necessary, to seize and, for so long as is necessary, retain any computer in which any record is kept.

  4. A member acting under the authority of a search warrant under this section may—

    1. operate any computer at the place that is being searched or cause any such computer to be operated by a person accompanying the member for that purpose, and
    2. require any person at that place who appears to the member to have lawful access to the information in any such computer—
      1. to give to the member any password necessary to operate it and any encryption key or code necessary to unencrypt the information accessible by the computer,
      2. otherwise to enable the member to examine the information accessible by the computer in a form in which the information is visible and legible, or
      3. to produce the information in a form in which it can be removed and in which it is, or can be made, visible and legible.

  5. A member acting under the authority of a search warrant under this section may, for the purpose of investigating the commission of an offence under section 7, 8 or 10, as the case may be, require any person at the place to which the search warrant relates to—

    1. give to the member his or her name and address, and
    2. provide such information to the member as he or she may reasonably require.

  6. The Police (Property) Act 1897 or, where appropriate, section 25 of the Criminal Justice Act 1951 shall apply to property which has come into the possession of the Garda Síochána under this section as that Act or that section, as the case may be, applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in the Act concerned.

  7. A person who—

    1. obstructs or attempts to obstruct a member acting under the authority of a search warrant under this section,
    2. fails to comply with a requirement under subsection (4)(b) or (5), or
    3. in relation to a requirement under subsection (5), gives a name and address or provides information which the member has reasonable cause for believing is false or misleading in a material respect, shall be guilty of an offence.

  8. A person guilty of an offence under subsection (7) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

  9. The power to issue a warrant under this section is without prejudice to any other power conferred by statute to issue a warrant for the search of any place or person.

  10. In this section—

    “computer” includes a personal organiser or any other electronic means of information storage and retrieval;

    “computer at the place that is being searched” includes any other computer, whether at the place being searched or at any other place, which is lawfully accessible by means of that computer;

    “member” means a member of the Garda Síochána who falls within paragraph (a) of the definition of “member” in section 3(1) of the Garda Síochána Act 2005.

Section 16: Forfeiture​

  1. The court by or before which a person is convicted of an offence under section 7, 8 or 10 may order any material shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.

  2. A court shall not order material to be forfeited under this section if a person claiming to be the owner of it or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him or her to show cause why the order should not be made.

  3. An order under this section shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.

PART 3: OFFENCES AGGRAVATED BY HATRED​

Section 17: Amendment of Criminal Damage Act 1991​

The Criminal Damage Act 1991 is amended—

    1. in section 1—

      1. in subsection (1), by the insertion of the following definitions:

        ‘Act of 2023’ means the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Act 2023;

        ‘hatred’ has the meaning it has in section 2(1) of the Act of 2023;

        ‘protected characteristic’ has the meaning it has in section 2(1) of the Act of 2023;

      2. in subsection (3)—
        1. by the substitution of “an offence under section 2, 2A, 3(a) or 4(a)” for “an offence under section 2, 3(a) or 4(a)”, and
        2. by the substitution of “sections 2, 2A, 3(a) and 4(a)” for “sections 2, 3(a) and 4(a)”,

      and

      1. in subsection (3A), by the substitution of “an offence under section 2, 2A, 3(a) or 4(a)” for “an offence under section 2, 3(a) or 4(a)”,

    2. by the insertion of the following section after section 2:

      Damaging property aggravated by hatred

      2A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 2 which is aggravated by hatred for the purposes of this section.

      2. An offence under section 2 committed by a person is aggravated by hatred for the purposes of this section if—

        1. where there is a specific victim of the offence—
          1. at the time of committing the offence, or immediately before or after doing so, the person demonstrates hatred towards the victim, and
          2. the hatred is on account of the victim's membership or presumed membership of a group defined by reference to a protected characteristic,

        or

        1. whether or not there is a specific victim of the offence, the offence is motivated (wholly or partly) by hatred towards a group of persons on account of the group being defined by reference to a protected characteristic.

      3. It is immaterial whether or not an accused person’s hatred is also on account (to any extent) of any other factor.

      4. A person guilty of an offence under this section shall be liable—

        1. on summary conviction, to a class B fine or imprisonment for a term not exceeding 12 months or both, or
        2. on conviction on indictment—
          1. in case the offence under section 2 that the person commits is arson under subsection (1) or (3) of that section or an offence under subsection (2) of that section (whether arson or not), to a fine or imprisonment for life or both, or
          2. in case the offence under section 2 that the person commits is an offence other than one referred to in subparagraph (i), to a fine or imprisonment for a term not exceeding 12 years or both.

      5. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 2.

      6. For the purposes of subsection (2)(a), the person to whom the property concerned belongs or is treated as belonging for the purposes of this Act shall be regarded as the victim of an offence under section 2 of damaging that property.

      7. In this section—

        ‘membership’, in relation to a group, includes association with members of the group;

        ‘presumed’ means presumed by the person who commits an offence under section 2.

    3. in section 6(1), by the substitution of the following paragraph for paragraph (a):

      (a) an offence under section 2(1), including such an offence when committed aggravated by hatred for the purposes of section 2A,

    and

    1. in section 7, by the insertion of the following subsection after subsection (2):

      (2A) In this section, references to an offence under section 2 shall include references to such an offence when committed aggravated by hatred for the purposes of section 2A.

Section 18: Amendment of Criminal Justice (Public Order) Act 1994​

The Criminal Justice (Public Order) Act 1994 is amended—

    1. in section 3, by the insertion of the following definitions:

      ‘Act of 2023’ means the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Act 2023;

      ‘hatred’ has the meaning it has in section 2(1) of the Act of 2023;

      ‘protected characteristic’ has the meaning it has in section 2(1) of the Act of 2023;

    2. by the insertion of the following section after section 3:

      Aggravation of certain offences by hatred

      3A.

      1. An offence committed by a person is aggravated by hatred for the purposes of sections 6A, 7A, 11A and 18A if—

        1. where there is a specific victim of the offence—
          1. at the time of committing the offence, or immediately before or after doing so, the person demonstrates hatred towards the victim, and
          2. the hatred is on account of the victim's membership or presumed membership of a group defined by reference to a protected characteristic,

        or

        1. whether or not there is a specific victim of the offence, the offence is motivated (wholly or partly) by hatred towards a group of persons on account of the group being defined by reference to a protected characteristic.

      2. It is immaterial whether or not an accused person’s hatred is also on account (to any extent) of any other factor.

      3. In this section— ‘membership’, in relation to a group, includes association with members of the group;

        ‘presumed’ means presumed by the person who commits an offence under section 6A, 7A, 11A or 18A, as may be appropriate.

    3. by the insertion of the following section after section 6:

      Threatening, abusive or insulting behaviour in public place aggravated by hatred

      6A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 6 which is aggravated by hatred for the purposes of this section.
      2. A person who is guilty of an offence under this section shall be liable on summary conviction to a class C fine or to imprisonment for a term not exceeding 6 months or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 6.

    4. by the insertion of the following section after section 7:

      Distribution or display in public place of material which is threatening, abusive, insulting or obscene aggravated by hatred

      7A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 7 which is aggravated by hatred for the purposes of this section.
      2. A person who is guilty of an offence under this section shall be liable on summary conviction to a class C fine or to imprisonment for a term not exceeding 6 months or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 7.

    5. in section 8, by the insertion of the following subsection after subsection (1):

      (1A) In subsection (1)(a), the reference to a person acting in a manner contrary to the provisions of section 6 or 7 shall include a reference to a person acting in a manner contrary to the provisions of the section concerned when aggravated by hatred for the purposes of section 6A or 7A, as may be appropriate.

    6. by the insertion of the following section after section 11:

      Entering building, etc., with intent to commit an offence aggravated by hatred

      11A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 11 which is aggravated by hatred for the purposes of this section.
      2. A person who is guilty of an offence under this section shall be liable on summary conviction to a class B fine or to imprisonment for a term not exceeding 9 months or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 11.

    7. by the insertion of the following section after section 18:

      Assault with intent to cause bodily harm or commit indictable offence aggravated by hatred

      18A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 18 which is aggravated by hatred for the purposes of this section.
      2. A person guilty of an offence under this section shall be liable—
        1. on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months or to both, or
        2. on conviction on indictment, to a fine or to imprisonment for a term not exceeding 7 years or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 18.

    and

    1. in section 24(5), by the insertion of—
      1. “6A,” after “6,”,
      2. “7A,” after “7,”,
      3. “11A,” after “11,”, and
      4. “, 18A” after “18”.

Section 19: Amendment of Non-Fatal Offences against the Person Act 1997​

The Non-Fatal Offences against the Person Act 1997 is amended—

    1. in section 1(1), by the insertion of the following definitions:

      ‘Act of 2023’ means the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Act 2023;

      ‘hatred’ has the meaning it has in section 2(1) of the Act of 2023;

      ‘protected characteristic’ has the meaning it has in section 2(1) of the Act of 2023;

    2. by the insertion of the following section after section 1:

      Aggravation of certain offences by hatred

      1A.

      1. An offence committed by a person is aggravated by hatred for the purposes of sections 2A, 3A, 4A, 5A, 9A, 10A and 13A if—

        1. where there is a specific victim of the offence—

          1. at the time of committing the offence, or immediately before or after doing so, the person demonstrates hatred towards the victim, and
          2. the hatred is on account of the victim's membership or presumed membership of a group defined by reference to a protected characteristic,

          or

        2. whether or not there is a specific victim of the offence, the offence is motivated (wholly or partly) by hatred towards a group of persons on account of the group being defined by reference to a protected characteristic.

      2. It is immaterial whether or not an accused person’s hatred is also on account (to any extent) of any other factor.

      3. In this section—

        ‘membership’, in relation to a group, includes association with members of the group;

        ‘presumed’ means presumed by the person who commits an offence under section 2A, 3A, 4A, 5A, 9A, 10A or 13A, as may be appropriate.

    3. by the insertion of the following section after section 2:

      Assault aggravated by hatred

      2A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 2 which is aggravated by hatred for the purposes of this section.
      2. A person guilty of an offence under this section shall be liable on summary conviction to a class B fine or to imprisonment for a term not exceeding 9 months or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 2.

    4. by the insertion of the following section after section 3:

      Assault causing harm aggravated by hatred

      3A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 3 which is aggravated by hatred for the purposes of this section.
      2. A person guilty of an offence under this section shall be liable—
        1. on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months or to both, or
        2. on conviction on indictment, to a fine or to imprisonment for a term not exceeding 7 years or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 3.

    5. by the insertion of the following section after section 4:

      Causing serious harm aggravated by hatred

      4A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 4 which is aggravated by hatred for the purposes of this section.
      2. A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 4.

    6. by the insertion of the following section after section 5:

      Threats to kill or cause serious harm aggravated by hatred

      5A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 5 which is aggravated by hatred for the purposes of this section.
      2. A person guilty of an offence under this section shall be liable—
        1. on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months or to both, or
        2. on conviction on indictment, to a fine or to imprisonment for a term not exceeding 12 years or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 5.

    7. by the insertion of the following section after section 9:

      Coercion aggravated by hatred

      9A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 9 which is aggravated by hatred for the purposes of this section.
      2. A person guilty of an offence under this section shall be liable—
        1. on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months or to both, or
        2. on conviction on indictment, to a fine or to imprisonment for a term not exceeding 7 years or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 9.

    8. by the insertion of the following section after section 10:

      Harassment aggravated by hatred

      10A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 10(1) which is aggravated by hatred for the purposes of this section.
      2. Subsections (3) to (5) of section 10 shall, with any necessary modifications, apply to an offence under this section as they apply to an offence under subsection (1) of that section.
      3. A person guilty of an offence under this section shall be liable—
        1. on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months or to both, or
        2. on conviction on indictment, to a fine or to imprisonment for a term not exceeding 12 years or to both.
      4. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 10(1).

    and

    1. by the insertion of the following section after section 13:

      Endangerment aggravated by hatred

      13A.

      1. A person shall be guilty of an offence under this section if he or she commits an offence under section 13 which is aggravated by hatred for the purposes of this section.
      2. A person guilty of an offence under this section shall be liable—
        1. on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months or to both, or
        2. on conviction on indictment, to a fine or to imprisonment for a term not exceeding 9 years or to both.
      3. A person charged with an offence under this section may, if the evidence does not warrant conviction for an offence under this section, be found guilty of an offence under section 13.

Section 20: Hatred against persons on account of their protected characteristics as aggravating factor in sentencing for certain offences​

  1. Without prejudice to any other enactment or rule of law and subject to subsections (2) and (3), a court shall treat as an aggravating factor hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics on the part of a person in the commission of an offence to which this section applies for the purposes of determining the sentence to be imposed on the person for that offence.

  2. Accordingly, the court shall (except where the sentence for the offence concerned is one of imprisonment for life or where the court considers there are exceptional circumstances justifying its not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such a factor.

  3. The sentence imposed shall not be greater than the maximum sentence permissible for the offence concerned.

  4. Where a greater sentence is imposed by a court pursuant to this section, the court shall state and record in the proceedings—

    1. the fact that the greater sentence is imposed pursuant to this section, and
    2. the protected characteristic or characteristics of the person or the group of persons concerned by reference to which that greater sentence is imposed.

  5. An offence to which this section applies means an offence other than an offence under any of the following provisions:

    1. sections 7, 8 and 10;
    2. section 2A (inserted by section 17) of the Criminal Damage Act 1991;
    3. sections 6A, 7A, 11A and 18A (inserted by section 18) of the Criminal Justice (Public Order) Act 1994;
    4. sections 2A, 3A, 4A, 5A, 9A, 10A and 13A (inserted by section 19) of the Non-Fatal Offences against the Person Act 1997.

PART 4: AMENDMENTS OF OTHER ENACTMENTS​

Section 21: Amendment of Schedule to Criminal Law (Jurisdiction) Act 1976​

The Schedule to the Criminal Law (Jurisdiction) Act 1976 is amended—

    1. by the substitution of the following paragraph for paragraph 6A:

      6A. Any offence under the following provisions of the Criminal Damage Act 1991—

        1. subsections (1) and (4) or subsections (2) and (4) of section 2 (arson);
        2. section 2A insofar as it relates to an offence of arson under section 2 (referred to in paragraph (a)) that is aggravated by hatred for the purposes of section 2A (arson aggravated by hatred).

    and

    1. in paragraph 7, by the insertion of the following subparagraph after subparagraph (a):

      (aa) section 4A (causing serious harm aggravated by hatred);

Section 22: Amendment of First Schedule to Extradition (Amendment) Act 1994​

The First Schedule to the Extradition (Amendment) Act 1994 is amended—

    1. in paragraph 6, by—

      1. the insertion of the following subparagraph after subparagraph (a):

        (aa) section 3A (assault causing harm aggravated by hatred);

      and

      1. the insertion of the following subparagraph after subparagraph (b):

        (ba) section 4A (causing serious harm aggravated by hatred);

    and

    1. by the substitution of the following paragraph for paragraph 11:

      11. Any offence under the following provisions of the Criminal Damage Act 1991—

        1. section 2(2) (damaging property with intent to endanger life or being reckless as to danger to life);
        2. section 2A insofar as it relates to an offence under section 2(2) that is aggravated by hatred for the purposes of section 2A (damaging property with intent to endanger life or being reckless as to danger to life aggravated by hatred).

Section 23: Amendment of Schedule to Bail Act 1997​

The Schedule to the Bail Act 1997 is amended—

    1. in paragraph 7, by—

      1. the insertion of the following subparagraph after subparagraph (a):

        (aa) section 3A (assault causing harm aggravated by hatred);

      2. the insertion of the following subparagraph after subparagraph (b):

        (ba) section 4A (causing serious harm aggravated by hatred);

      3. the insertion of the following subparagraph after subparagraph (c):

        (ca) section 5A (threats to kill or cause serious harm aggravated by hatred);

      4. the insertion of the following subparagraph after subparagraph (g):

        (ga) section 9A (coercion aggravated by hatred);

      5. the insertion of the following subparagraph after subparagraph (h):

        (ha) section 10A (harassment aggravated by hatred);

      and

      1. the insertion of the following subparagraph after subparagraph (i):

        (ia) section 13A (endangerment aggravated by hatred);

    2. in paragraph 8, by the insertion of the following subparagraph after subparagraph (a):

      (aa) section 18A (assault with intent to cause bodily harm or commit indictable offence aggravated by hatred);

    and

    1. in paragraph 18, by the insertion of the following subparagraph after subparagraph (a):

      (aa) section 2A (damaging property aggravated by hatred);

Section 24: Amendment of Second Schedule to Criminal Justice (Safety of United Nations Workers) Act 2000​

The Second Schedule to the Criminal Justice (Safety of United Nations Workers) Act 2000 is amended—

    1. in Part I, in paragraph 4, by—

      1. the insertion of the following subparagraph after subparagraph (a):

        (aa) section 2A (assault aggravated by hatred);

      2. the insertion of the following subparagraph after subparagraph (b):

        (ba) section 3A (assault causing harm aggravated by hatred);

      3. the insertion of the following subparagraph after subparagraph (c):

        (ca) section 4A (causing serious harm aggravated by hatred);

      4. the insertion of the following subparagraph after subparagraph (d):

        (da) section 5A (threats to kill or cause serious harm aggravated by hatred);

      and

      1. the insertion of the following subparagraph after subparagraph (f):

        (fa) section 13A (endangerment aggravated by hatred);

    and

    1. in Part II, in paragraph 2, by the insertion of the following subparagraph after subparagraph (a):

      (aa) section 2A (damaging property aggravated by hatred);

Section 25: Amendment of section 3 of Criminal Justice (Public Order) Act 2003​

Section 3 of the Criminal Justice (Public Order) Act 2003 is amended by the insertion of—

    1. “6A,” after “6,”, and
    2. “7A,” after “7,”.

Section 26: Amendment of Criminal Justice (Terrorist Offences) Act 2005​

The Criminal Justice (Terrorist Offences) Act 2005 is amended—

    1. in Part 1 of Schedule 2—

      1. in paragraph 2, by—

        1. the insertion of the following subparagraph after subparagraph (a):

          (aa) section 3A (assault causing harm aggravated by hatred);

        2. the insertion of the following subparagraph after subparagraph (b):

          (ba) section 4A (causing serious harm aggravated by hatred);

        and

        1. the insertion of the following subparagraph after subparagraph (e):

          (ea) section 13A (endangerment aggravated by hatred);

      and

      1. by the substitution of the following paragraph for paragraph 5:

        5. Any offence under any of the following provisions of the Criminal Damage Act 1991:

          1. section 2 (damaging property);
          2. section 2A (damaging property aggravated by hatred).

    and

    1. in Part 1 of Schedule 6—

      1. in paragraph 2, by—

        1. the insertion of the following subparagraph after subparagraph (a):

          (aa) section 2A (assault aggravated by hatred);

        2. the insertion of the following subparagraph after subparagraph (b):

          (ba) section 3A (assault causing harm aggravated by hatred);

        3. the insertion of the following subparagraph after subparagraph (c):

          (ca) section 4A (causing serious harm aggravated by hatred);

        and

        1. the insertion of the following subparagraph after subparagraph (f):

          (fa) section 13A (endangerment aggravated by hatred);

      and

      1. in paragraph 6, by the insertion of the following subparagraph after subparagraph (a):

        (aa) section 2A of the Criminal Damage Act 1991 (damaging property aggravated by hatred);

Section 27: Amendment of Schedule 3 to Criminal Justice Act 2006​

Schedule 3 to the Criminal Justice Act 2006 is amended—

    1. in paragraph 1, by—

      1. the insertion of the following after “section 6 (threatening, abusive or insulting behaviour in public place)”:

        section 6A (threatening, abusive or insulting behaviour in public place aggravated by hatred)

      and

      1. the insertion of the following after “section 11 (entering building, etc., with intent to commit an offence)”:

        section 11A (entering building, etc., with intent to commit an offence aggravated by hatred)

    and

    1. in paragraph 2, by—

      1. the insertion of the following after “section 2 (assault)”:

        section 2A (assault aggravated by hatred)

      2. the insertion of the following after “section 3 (assault causing harm)”:

        section 3A (assault causing harm aggravated by hatred)

      3. the insertion of the following after “section 9 (coercion)”:

        section 9A (coercion aggravated by hatred)

      and

      1. the insertion of the following after “section 10 (harassment)”:

        section 10A (harassment aggravated by hatred)

Section 28: Amendment of Schedule 2 to Criminal Justice Act 2007​

Schedule 2 to the Criminal Justice Act 2007 is amended, in paragraph 2, by—

    1. the insertion of the following subparagraph after subparagraph (a):

      (aa) section 4A (causing serious harm aggravated by hatred);

    and

    1. the insertion of the following subparagraph after subparagraph (b):

      (ba) section 5A (threats to kill or cause serious harm aggravated by hatred);

Section 29: Amendment of Schedule 3 to Broadcasting Act 2009​

Schedule 3 to the Broadcasting Act 2009 is amended by the substitution of the following paragraphs for paragraphs 4 and 5:

Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Act 2023

Online content by which a person communicates material or behaves in a manner contrary to section 7(1) of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Act 2023 (material or behaviour likely to incite violence or hatred against persons on account of their protected characteristics). Online content by which a person communicates material or behaves in a manner contrary to section 8(1) of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Act 2023 (material or behaviour that condones, denies or grossly trivialises genocide, etc., against persons on account of their protected characteristics).

Section 30: Amendment of Schedule to Criminal Procedure Act 2010​

The Schedule to the Criminal Procedure Act 2010 is amended—

    1. in paragraph 10, by the insertion of the following subparagraph after subparagraph (a):

      (aa) section 4A (causing serious harm aggravated by hatred);

    and

    1. by the addition of the following paragraph after paragraph 20:

      20A. An offence under section 2A of the Criminal Damage Act 1991 (damaging property aggravated by hatred).

Section 31: Amendment of National Vetting Bureau (Children and Vulnerable Persons) Act 2012​

The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 is amended—

    1. in section 14A(4)(c), by the insertion of “6A,” after “6,” and the insertion of “7A,” after “7,”, and
    2. in paragraph 17 of Schedule 3, by the insertion of “, 18A” after “18”.

Section 32: Amendment of Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012​

The Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 is amended—

    1. in Schedule 1, in paragraph 18, by—

      1. the insertion of the following subparagraph after subparagraph (a):

        (aa) section 3A (assault causing harm aggravated by hatred),

      2. the insertion of the following subparagraph after subparagraph (b):

        (ba) section 4A (causing serious harm aggravated by hatred),

      3. the insertion of the following subparagraph after subparagraph (c):

        (ca) section 5A (threats to kill or cause serious harm aggravated by hatred),

      and

      1. the insertion of the following subparagraph after subparagraph (d):

        (da) section 13A (endangerment aggravated by hatred),

    and

    1. in Schedule 2, by the substitution of the following paragraph for paragraph 11:

      11. An offence under any of the following provisions of the Non-Fatal Offences against the Person Act 1997—

        1. section 3 (assault causing harm),
        2. section 3A (assault causing harm aggravated by hatred).

Section 33: Amendment of Schedule to Taxi Regulation Act 2013​

Part 2 of the Schedule to the Taxi Regulation Act 2013 is amended—

    1. in paragraph 2, by the substitution of “section 18, 18A or 19(1)” for “section 18 or 19(1)”,
    2. in paragraph 3, by the substitution of “(other than section 2, 2A or 16)” for “(other than section 2 or 16)”, and
    3. by the insertion of the following paragraph after paragraph 9:

      9A. An offence under section 2A of the Criminal Damage Act 1991 insofar as it relates to an offence under section 2(2)(b) of that Act that is aggravated by hatred for the purposes of section 2A of that Act.

Section 34: Amendment of section 5 of Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016​

Section 5(5)(c) of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 is amended by the insertion of “6A,” after “6,” and the insertion of “7A,” after “7,”.

Section 35: Amendment of section 2 of Criminal Justice (Victims of Crime) Act 2017​

Section 2(1) of the Criminal Justice (Victims of Crime) Act 2017 is amended, in paragraph (d) of the definition of “protection measure”, by the substitution of “section 10 or 10A of the Non-Fatal Offences against the Person Act 1997” for “section 10 of the Non-Fatal Offences against the Person Act, 1997”.

Section 36: Amendment of Schedule 2 to European Union (Passenger Name Record Data) Regulations 2018​

Schedule 2 to the European Union (Passenger Name Record Data) Regulations 2018 (S.I. No. 177 of 2018) is amended—

    1. in paragraph 7, by the insertion of “or 2A” after “2” in the reference to sections of the Criminal Damage Act 1991, and
    2. in paragraph 12—
      1. by the insertion of “, 18A” after “18” in the reference to sections of the Criminal Justice (Public Order) Act 1994, and
      2. in the reference to sections of the Non-Fatal Offences against the Person Act 1997, by—
        1. the insertion of “3A,” after “3,”,
        2. the insertion of “4A,” after “4,”,
        3. the insertion of “5A,” after “5,”,
        4. the insertion of “,” after “6”,
        5. the deletion of “or” after “6”, and
        6. the insertion of “or 13A” after “13”.

Section 37: Amendment of section 1 of Criminal Law (Extraterritorial Jurisdiction) Act 2019​

Section 1 of the Criminal Law (Extraterritorial Jurisdiction) Act 2019 is amended, in paragraph (a) of the definition of “relevant offence”, by—

    1. the insertion of “3A,” after “3,”,
    2. the insertion of “4A,” after “4,”,
    3. the insertion of “5A,” after “5,”, and
    4. the insertion of “, 9A” after “9”.

Footnotes​

  1. OJ L328, 6.12.2008, p.55 ↩

  2. OJ L328, 6.12.2008, p.55 ↩