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Racist Crime: Issues, Opportunities and the EU Framework Decision on Combating Racism and Xenophobia


“All it takes for evil to flourish is for good people to stand by and do nothing�


Racist Crime Issues, Opportunities and the EU Framework Decision on Combating Racism and Xenophobia Seminar report compiled by Catherine Lynch June 2010


Acknowledgements ENAR Ireland would like to take this opportunity to thank all those who supported the seminar. In particular, we would like to thank the speakers including Paul Iganski, Kenneth Maher, Salome Mbugua and Siobhan Cummiskey. We appreciate the contributions made from participants and thank them for engaging in an informed and creative discussion on the issues facing us in the area of racist crime, at national and European levels. Special thanks to Anastasia Crickley for chairing the seminar and facilitating the identification of recommendations on the way forward. We would also like to acknowledge and thank Language for their work on the design of the publication.

Published by ENAR Ireland Š 2010


Racist Crime: Seminar Report 2010

Hyperlink Contents Executive Summary

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Section One: Background and Introduction

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1.1 Background to the seminar 

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1.2 The EU Framework Decision on Combating Racism and Xenophobia

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1.3 Structure of report

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Section Two: Summary of Inputs 

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2.1 Setting the scene – Catherine Lynch and Anastasia Crickley

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2.2 The role of legal instruments in tackling violence an ‘hate crime’ in Europe – Paul Iganski 

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2.3 The EU Framework Decision: The Irish situation – Kenneth Maher, Department of Justice, Equality and Law Reform 

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2.4 Racist violence and crime: an overview of issues from an NGO perspective – Salome Mbugua, Akidwa

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2.5  Prohibition of Incitement to Hatred Act and NGO approaches to hate speech: analysis and case study –

Siobhan Cummiskey, Irish Traveller Movement 

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Section Three: Summary of Discussion

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3.1 Questions and clarifications

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3.2 Discussion and debate 

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Section Four: Conclusions and Next Steps

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4.1 Conclusions

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4.2 Next steps 

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4.2.1 Recommended responses to Government

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4.2.2 Recommended of next steps for ENAR Ireland 

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Appendix i: Biographies of Speakers

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Appendix ii: Summary of the EU Framework Decision on Combating Racism and Xenophobia 

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Appendix iii: List of Participants

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Executive Summary

Introduction Racism needs to be explicitly recognised as a crime and Ireland requires the legislation and infrastructure to deal with it effectively. The challenge is to develop the legislative framework to effectively deal with issues experienced on the ground as there is a clear gap between needs expressed by NGOs and those experiencing racism and the measures that are in place to deal with them. The seminar highlighted the obligation on the State to transpose the EU Framework Decision to combat racism and xenophobia and resulting opportunities. It provided the space for NGOs, officials and other relevant stakeholders including legal experts, to discuss and debate issues related to racist and xenophobic crime. It identified relevant issues at the national level with regard to racist crime as well as difficulties and limitations in the existing legal framework. There were diverse views on Ireland’s current capacity to deal with racism through criminal law and on how best to do this. Different opinions were evident on the extent to which Ireland complies with or is ready to transpose the EU Framework Decision on combating racism and xenophobia. The session highlighted limitations of existing and emerging legislation. It identified issues in relation to the application of racially aggravated sentencing where discretionary powers exist.



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The Framework Decision itself is a limited instrument but the purpose of the seminar was to see how we can get the maximum effect from a limited instrument. A point that emerged is the need to go beyond both of these instruments and the seminar provided a space to have that timely debate and discussion. Part of the problem is that we have awaited the Framework Decision and a review of the 1989 Act in order to actually look to the gaps that people are concerned about. There are issues that the Framework Decision and incitement to hatred legislation might address but there are other issues also. However, we need to ensure that while the instruments are limited, that they are implemented as well as possible. There was a clear distinction between the official position from Government on the one hand which held that Ireland for the most part, is in a good position with adequate legislation including the Incitement to Hatred Act1 and NGOs and other stakeholders who held that there is significant work to be done to bring Ireland to the point where we have adequate legislation that is effectively implemented. There appeared to be some agreement with regard to use of the legislative measures and that while some measures are available - e.g. scope for the judiciary to include racism as a motivating factor in sentencing - they are not sought or implemented.

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The Incitement to Hatred Act 1989. It should be noted, however, that NGOs and expert bodies including CERD have highlighted the limited effectiveness of this legislation. 4


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Key messages Racism must be dealt with more effectively, through criminal law. ⋅⋅ The law needs to focus on impact rather than intent or thought. ⋅⋅ There needs to be greater consideration on how to incorporate aggravated offences and to make aggravated sentencing more effective. ⋅⋅ Criminal Law must be seen as a deterrent and penalties need to reflect this. Infrastructure supporting the legislation needs to be enhanced and strengthened. ⋅⋅ The role of the judiciary and An Garda Siochána is critical to ensuring implementation and effectiveness. The legislation will not be effective if the judiciary does not apply measures afforded or if the police do not adequately record racist incidents. ⋅⋅ There needs to be greater awareness of the relevant legislation including by those responsible for its implementation and also by both victims and potential perpetrators of racist crime. Racist Incidents Reporting and Monitoring is critical both to addressing racism and developing responses in order to prevent racist crime. ⋅⋅ Reporting is dependent on awareness, access to information,



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trust and belief in effectiveness of the legislation among other factors. ⋅⋅ An independent system for the monitoring of racist incidents – such as that developed by ENAR Ireland – plays an important role in ensuring we get a full picture of the extent and nature of racism as it manifests in Ireland today.

Responses ⋅⋅ Greater consideration needs to be given to options for the inclusion of racially motivated offences and effective application of racially aggravated sentencing. ⋅⋅ Strengthen our capacity to prevent and address hate speech including through strengthening incitement to hatred legislation. ⋅⋅ There needs to be a shift in focus from intent to impact – and this needs to be reflected in legislation and at sentencing. ⋅⋅ A holistic approach to the implementation of the law, with all stakeholders – including the police and the judiciary – playing their role to the full is esential. ⋅⋅ Greater recognition of the role of a range of stakeholders including civil society organisations and those experiencing racism, can help address the gap between the need on the ground and the legal options currently available. Effective

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communication between relevant government departments and statutory bodies with civil society organisations is vital to developing responses to racism including through criminal law.



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Section One:

Background and Introduction 1.1 Background to the Seminar Racism is criminal. However, in Ireland and other EU Member States, legislation to prevent and combat racist violence and crime is not as clear, strong or effective as it might be. In seeking to combat racism, the EU recognised difficulties with regard to the legislative frameworks in different Member States. ENAR Ireland, as the Irish coordination for the European Network Against Racism (ENAR), seeks to increase awareness of EU instruments at the national level and to ensure that they are effectively transposed and implemented. A key development at an EU level was the adoption of the EU Framework Decision on combating Racism and Xenophobia, which is due to be transposed in Member States by November 2010. Supporting the transposition of the Framework Decision is a key policy objective of ENAR Ireland for 2010. The relevance of racist crime came to the fore in 2010 when high profile incidents brought home the fact that racist violence persists and it is critical that we have the necessary infrastructure including legislative framework to prevent and address it. We need a legislative framework that meets at a minimum, the standards set down in the Framework Decision but goes beyond this to ensure the best possible standards to build a safer Ireland for all, including ethnic minorities. 

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In this context, ENAR Ireland decided to hold a seminar entitled ‘Racism is a Crime’, highlighting and exploring opportunities at the European level to strengthen our legislation.

1.2 The EU Framework Decision on Combating Racism and Xenophobia With the rise of new technologies and greater information sharing in the early 1990s, there had been clear evidence of difficulties arising within the EU internal market linked to differences in the substance of EU Member States’ criminal law provisions on racism and xenophobia. Inconsistencies with regard to the laws of Member States led to scenarios whereby, for example, racist literature could be published in a country where it was not an offence to do so with the objective of dissemination in a state where it was an offence. The initial response to such cases was for the European Council to issue a “Joint Action concerning action to combat racism and xenophobia” in 19962, which had the objective of encouraging judicial cooperation in relation to a range of offences linked to racism and xenophobia. However, this measure was particularly weak because the European Court of Justice has no jurisdiction to interpret a Joint Action. It also failed to specifically address the distribution of racist material via the internet.

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[1996] OJ L185/5 10


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The Framework Decision on combating racism and xenophobia3 (hereinafter referred to as the “Framework Decision”) was proposed in 2001 with the aim of remedying some of these shortcomings. The 1999 Treaty of Amsterdam enabled more comprehensive measures thus allowing such proposals to evolve into stronger instruments, notably with Article 29 to the EU Treaty, which charged the Union with the objective of “preventing and combating racism and xenophobia in the field of police and judicial cooperation in criminal matters”. Although generally matters of criminal law do not fall within the European Community’s remit, the Council of the European Union can determine minimum rules relating to the elements of criminal acts and their accompanying penalties. As such, Framework Decisions are binding on Member States as to the result to be achieved but leave it up to national authorities to decide on the forms and methods through which to achieve these results. The Framework Decision on combating racism and xenophobia provides an estimation of the laws and regulations which Member States should adhere to regarding offences involving racism and xenophobia. The decision advocates that such behaviour must constitute a criminal offence in all Member States and be punishable by effective, proportionate and dissuasive penalties. The main focus of the Decision is on the prevention of public incitement to violence and hatred 3

The full text of the EU Framework Decision on combating racism and xenophobia is available at http://tinyurl.com/eu-framework See appendix I for the official summary of the Framework Decision. 

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against persons on the grounds of racism and xenophobia. The decision aims at harmonising the criminality of racist conduct throughout all the countries of the EU. Provided that Member States adopt and implement it fully, it will help ensure that the various national anti-racist laws are sufficiently comprehensive and severe and that effective judicial cooperation can be developed EU-wide. Source: ENAR Factsheet F42, Racist Violence and Support to Victims.

1.3 Structure of report The report opens with key messages which are followed by an introductory section. Section two provides a summary of inputs by speakers, including an academic and NGO perspective as well as that of the Department of Justice and Law Reform. Section three presents an overview of the questions raised and discussion over the course of the seminar. Section four identifies key conclusions of the seminar and next steps, both for Government and ENAR Ireland. Appendices include a summary of the EU Framework Decision and list of participants.

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Section Two:

Summary of Inputs 2.1 Setting the Scene

Catherine Lynch and Anastasia Crickley Protection against racist violence and crime is necessarily a key focus of ENAR Ireland’s work in 2010. Key actions on this theme include raising awareness of the EU Framework Decision on combating racism and xenophobia and also ensuring the development of a standard framework for the monitoring of racist incidents. The diversity of the audience was welcomed, bringing together a range of stakeholders including officials, statutory agencies, NGOs, human rights activists, legal experts and in particular, members of communities affected directly by racism. There have been some tragic and worrying incidents that were witnessed during the year that brought the issue again to the fore. In particular, Toyosi Shittabey4 was remembered and the seminar set out to play its small part towards contributing to a legacy; that Ireland shall be equipped to protect ethnic minorities including Travellers and to realise a safer Ireland for all.

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Toyosi Shittabey was killed in April 2010 near his home in Dublin at only 15 years of age. His killing is believed to have been racially motivated and is being investigated as such. 

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Ireland must be ready to prevent any increase in racist violence and crime. In a Europe where racist violence and crime are clearly on the increase and there appears to be greater tolerance for it including the rise of the far right and extremist groups, Ireland and Irish society cannot be complacent. NGOs have had by now longstanding hopes that a Framework Decision could play an important role in combating racism and xenophobia across the EU. For a decade now, the EU has noted the need for a common framework to enable it to support action in the area of racist crime. This reached an interim conclusion in November 2008 with the adoption of an EU Framework Decision, namely the EU Framework Decision on combating racism and xenophobia. A key opportunity lies ahead for us at a national level to examine our current framework and see how best we might review and strengthen our capacity to combat racist and xenophobic crime. At this time, we must look to go beyond minimum standards and to reclaim our reputation as leaders in human rights and equality at the EU level. We must also encourage and insist that our fellow Member States also prioritise this issue and task.

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2.2 The role of legal instruments in tackling violence an ‘hate crime’ in Europe

Paul Iganski Paul Iganski lectures at Lancaster University and has written extensively on hate crime. Much of his work has been commissioned by NGOs and he is currently carrying out a comparative study on racist violence across the EU, for the European Network Against Racism. Paul’s input was informed from his extensive body of work and in particular, research he conducted a decade ago in the United States on sabbatical as well as more recent analysis of British Crime Survey data. A decade ago (while in the US), Paul explained the significant controversy and debate regarding the relationship or tension between a drive to address hate speech and freedom of expression. At the time, he spoke to both supporters and opponents of hate crime measures. On the one hand, opponents held that such measures were punishing expression and contravening the individual’s rights of freedom of thought and expression that goes with it. Such opponents – politicians and newspaper columnists in particular - supported bringing the weight of the law down on ‘race’ crime offenders. However, they argued that giving offenders an extra penalty – which is what hate crime laws do – for their motivating impulses, was tantamount to punishing the thoughts inside their heads and therefore contrary to human rights. This debate is a familiar one.



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Cognisant of this argument, Paul explained the he was interested to see how supporters of hate crime laws could justify an extra penalty. To this end, he carried out a series of qualitative interviews with both opponents and supports of the laws. What he found was that the supporters were also supportive of freedom of expression – again, not surprising as they too were situated in the culture of the US. Strongly in favour of the right to freedom of expression, they argued – and different people said different things in relation to this argument – that the extra penalty that hate crime laws provide is provided not for the thoughts inside a person’s head but for the extra harms that occur as a consequence of hate crime. Through his research, he tried to get people to articulate those harms to him. The harm caused was compared to a wave of harm emanating from the act. The initial victim is directly targeted. However, the person targeted directly is only the first victim of the racist crime. There are many other victims. Starting with the individual, the initial victim, a number of people had said that the act hurts the victim more. One interviewee, who was working in a health centre for gay men in Boston, explained for example that if a person is mugged on the street, that person will likely be more careful in future. However, if a person goes out on the street where someone calls them an offence term and punches them, this shall have a greater impact. The incident hurts more because it strike at the core of who is the person is, one’s identity and you cannot change or avoid 16


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that. Quite a number of people were saying this; scholars similarly were saying this and trying to test this with victims to understand the hurt. The work that has emerged over the past decade has drawn out the harmful impacts and this work is very useful for interventions. However, there is still a long way to go. In demonstrating the extra harm and the nature of the hurt, Paul referred to an analysis of British Crime Survey data which indicates indisputably that hate crime hurts more. The source of the data was the Home Office’s crime survey. Questions asked in the survey include, “do you think this occurred because of your race or ethnicity?” and “did you have an emotional reaction following the incident?” Taking the data, Paul had compared the results for the victims of racially motivated incidents with those of the victims of non-racially motivated incidents, breaking it down by crime type. What the data shows is that higher proportions of victims of racially motivated incidents reported having an emotional reaction after the incident. Of course, high proportions of all victims reported having an emotional reaction but higher proportions of victims of racially motivated incidents reported an emotional reaction. What was also startling about the results of the study5 was that when you examined results for ‘assault or attempted assault’, 92.4% of victims reported having an emotional reaction. When 5

Controlled by crime type. 

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looking at ‘racially motivated pranks’ you see that 91.2% of people reported having an emotional reaction. Paul explained that this started to tell him that there is no such thing as a ‘low level incident’; the notion of a ‘low level incident’ is a misnomer. From the research, he concludes that verbal abuse, pranks and harassment can be just as damaging psychologically and emotionally as a physical attack. This notion of a low level incident is something of a fallacy. The British crime survey goes on and asked people who said they had an emotional reaction, ‘did you experience these following things: anger, shock, fear, depression’ and so on – post traumatic stress type symptoms. The pattern is not entirely consistent but almost uniformly, victims of these racially motivated attacks compared to victims of non-racially motivated attacks reported higher levels of these symptoms in almost all cases, when compared to victims of non-racially motivated attacks. Another interesting finding was that when data was further broken down, it showed that ‘white’ victims of crimes they believed were racially motivated, also reported higher levels of emotional reactions. People continue to say that the evidence is inconclusive and that the jury is out; Paul argued however that this research is scientific and the results clearly demonstrate that racially motivated incidents have a greater impact on the victim. Turning to the role of the criminal law, he explained that the greater the consequence and the greater the harm, the greater the penalty. This is how the criminal law works. The provisions

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for racially aggravated offences or the provision of additional penalties that are at the discretion of the judge at sentencing, are not punishing freedom of expression. Instead, they are giving extra punishment for the extra harm. The expressions, thoughts and opinions of the offender only come into play as an indicator of the type of an offence. While the main focus of the input was on racially aggravated offences, it is important to note that the Framework Decision also refers to the denial of crime against humanity. Paul explained that his previous arguments are also relevant to other crimes and the same thinking comes into play. One of the early judgments in court for example, concluded in the case of Holocaust denial because the Holocaust is so integral to the identity of Jews in Europe and to their descendents, that each act of denial constitutes an ongoing act of discrimination, which causes unique harm. The law was not criminalising specific types of speech or expression but giving greater punishment for greater harm. It sets a framework which requires penalties be proportionate and dissuasive. Criminal law provides an important symbolic role. Criminologists may argue that criminal law does not stop people from re-offending but there might be agreement that criminal law acts as a general deterrent. This dissuasive aspect is a key reason to use criminal law. Turning briefly to the perpetrators, Paul challenged the stereotype often mitigated by the media for example, that hate crime offenders are hate-fuelled individuals with bigoted 

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views that target their victims in pre-meditated violent attacks. However, scholarly research demonstrates that perpetrators are more likely to be ordinary people who offend in the context of their everyday lives. In summary, Paul’s input and research showed that: ⋅⋅ Scientific evidence shows that hate speech including ‘race’ hate speech has a greater impact, including on the individual and therefore, the penalty should reflect the greater harm. ⋅⋅ The notion of a ‘low level incident’ is a misnomer. ⋅⋅ Evidence suggests strongly that including racist motivation as an aggravating factor and in sentencing works where it is implemented. ⋅⋅ Criminal law acts as a general deterrent. ⋅⋅ The majority of perpetrators of hate crime are ‘ordinary’ people who offend in the context of their everyday lives.

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2.3 The EU Framework Decision: The Irish Situation

Kenneth Maher, Department of Justice, Equality and Law Reform Kenneth thanked ENAR Ireland for the invitation to speak about the EU Framework Decision and said that he was pleased to be participating. He introduced himself and outlined his role within Criminal Law Reform Division of the Department of Justice and Law Reform and his areas of responsibility. He explained that for the purposes of the seminar his input would focus on a specific piece of EU legislation, namely the Council Framework Decision 2008/913/ JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law (hereinafter referred to as the Framework Decision). Firstly, Kenneth gave the background to the adoption of the Framework Decision and provided a brief synopsis of its provisions. As part of this, he discussed how the State considers it is compliant with the provisions of the Framework Decision through existing legislation and outlined the legislative provisions that implement the Framework Decision. He then spoke briefly about the recent meeting in Brussels organised by the European Commission to discuss the implementation of the Framework Decision in each Member State. Finally, he mentioned some of the proposals at EU level in the area of racism and xenophobia.



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The proposal for a Council Framework Decision on Combating Racism and xenophobia was presented to the European Council in November 2001. The proposal and need for such an instrument were then discussed at a number of meetings within the Council framework with a view to replacing the 1996 Joint Action concerning action to combat racism and xenophobia. The negotiations became protracted and stalled for a period. After addressing the concerns of various Member States and considering alternative proposals, negotiations restarted in late 2006. Following a period of further discussion between the Member States, the Presidency and the Commission, the Framework Decision was agreed. It entered into force on 28 November 2008 with a two year deadline for its transposition and implementation into national law. The Framework Decision is quite a short document consisting of a number of recitals and 13 articles. The Framework Decision acknowledges that “Racism and Xenophobia are direct violations of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law upon which the European Union is founded and which are common to the Member States�. Article 1 of the Framework Decision outlines a number of offences concerning racism and xenophobia. These include public incitement to violence or hatred against specific persons based on their race, colour, religion, ethnicity, to name but a few grounds. Publicly condoning, denying or grossly 22


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trivialising genocide, crimes against humanity or peace, and war crimes in a manner likely to incite hatred against any person or persons are also offences. In national law, this Article is implemented in Sections 2, 3 and 4 of the Prohibition of Incitement to Hatred Act 1989. Section 2 of the Act provides for an offence of publishing or distributing written material that is likely to stir up hatred. It is also an offence to publicly use words, display materials or behave in a manner which is likely to stir up hatred. In addition, this section provides for the offence of distributing, showing or playing a recording of visual images or sounds likely to incite hatred. Section 3 of the Act provides for an offence of broadcasting material likely to cause incitement. Section 4 of the Act provides for an offence of preparing and possession of materials likely to stir up hatred. Article 2 of the Framework Decision provides that the instigation of an offence, or aiding and abetting the commission of any such offences are punishable as a criminal offence in their own right. This provision is implemented by Section 7(1) of the Criminal Law Act 1997 which states: “Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender.� Article 3 of the Framework Decision specifies that each Member State shall provide for penalties which are proportionate and dissuasive. Under Section 6 of the



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Prohibition of Incitement to Hatred Act 1989, persons convicted of an offence may be liable to imprisonment for a maximum term of two years and/or a maximum fine of €12,500. Article 4 of the Framework Decision states that for certain offences, Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivation may be taken into consideration by the courts in the determination of penalties. Ireland’s constitutional and legal framework reflects this principle of judicial discretion in sentencing. In addition to the 1989 Act, it should be noted that the provisions of other Acts such as: ⋅⋅ The Criminal Justice (Public Order) Act 1994; ⋅⋅ The Non-Fatal Offences Against the Person Act 1997; and ⋅⋅ The Criminal Damage Act 1991 may also be used to protect persons and their property against attack, including racist or xenophobic attacks or threatening behaviour. Article 5 of the Framework Decision outlines the criminal liability of legal persons. This has been implemented in Section 7 of the 1989 Act which provides for offences by a legal person (body corporate).

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Section 7, subsection 1 of that Act covers an offence committed by a body corporate or with the consent or connivance of: a director; manager; secretary or similar officer of the corporate entity. Liability may also arise in the case of culpable neglect by such officers. A particular emphasis is placed on the criminal liability of the management and directors of any company with regard to their acts or defaults which may incite hatred. Article 6 of the Framework Decision specifies the need for appropriate criminal penalties where an offence has been committed by a body corporate. Kenneth referred to penalties when discussing the offence provisions in our legislation (see above). The purpose of Article 7 of the Framework Decision is to protect the right to freedom of association and freedom of expression, in particular that of the press and other media. These are rights already upheld by Article 40, paragraph 6 of our Constitution. Article 8 of the Framework Decision states that each Member State shall take the necessary measures to ensure that investigations and prosecutions are not dependent on a report or an accusation made by a victim. This is already the standard procedure of an Garda Síochána. The Gardaí may conduct an investigation based on a report of a victim or on their own enquiries. Similarly, the prosecution of an offence is at the discretion of the Director of Public Prosecutions which is a statutory independent office. 

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Moving on to the Commission’s monitoring of the implementation of the Framework Decision, Kenneth explained that he had attended a meeting in Brussels in late February 2010. The purpose of the meeting was to provide assistance to Member States who have yet to transpose the Framework Decision and to exchange best practice on the transposition of the Framework Decision. Ireland along with some other Member States, he said, played a leading role at the meeting in providing information to the Commission and assistance to others who have run into difficulties with implementation. There was a lot of interest in Ireland’s legislative framework to deal with racism and xenophobia. In general terms, the difficulties for some Member States relate to implementation of Articles 5 and 6 of the Framework Decision, namely the liability of legal persons and the corresponding offences. Other countries expressed difficulties in striking a balance between freedom of expression and the contents of Articles 1(c) and 1(d), which are the provisions relating to denial or trivialising certain events. In particular, a number of countries had Constitutional concerns (regarding the protection of freedom of expression) with these provisions. Some Member States may need to refer the Framework Decision to their Constitutional Courts. So where do we go from here? In late April, the European Commission issued its most recent action plan for implementing the Stockholm Programme. The Stockholm 26


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Programme is the policy framework for EU cooperation across the Justice and Home Affairs area for the period 2010–2014. In the context of this programme, the European Council has called on the Commission to complete the review required by Article 10 of the Framework Decision. This review must be completed in time for an assessment of Member States’ compliance by November 2013. The Stockholm Programme also makes provision for further proposals from the Commission, if considered necessary in light of the review. In addition, the Council has recommended that full use is made of existing legal instruments and financing programmes to combat racism and xenophobia. With this in mind the Commission has stated that all policy instruments will be deployed to fight all forms of discrimination, racism, xenophobia and homophobia. In practical terms, the Commission work programme proposes three initiatives: ⋅⋅ Communication on the fight against racism, xenophobia and discrimination (scheduled for either 2010 or 2011); ⋅⋅ Report on the implementation of the Race Discrimination Directive; and ⋅⋅ Report on the implementation of the EU Framework Decision.



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2.4 R  acist violence and crime: an overview of issues from an NGO perspective

Salome Mbugua, Akidwa Salome Mbugua is the Director Akidwa, a network of African and migrant women. Originally from Kenya, Salome has been living in Ireland for 17 years and describes her experience as both that of insider and outsider. Salome explained that she spoke at the seminar both in her capacity as someone working with NGOs and migrant women but also as an African Black woman who has experienced racism. Salome highlighted the importance of naming racism, the persistent nature and reality of racism in people’s lives, the apparent denial of racism at present and the dangers resulting from this. She shared experiences of a number of racist incidents and their impact on individuals, families and communities. Salome explained that her motivation to speak on this issue comes from the fact that she has seen so much. Based on her experience, she posits that the 22nd century will judge Ireland poorly if the current situation continues. Racism continues to be apparent, despite some important initiatives such as the National Action Plan Against Racism (NAPAR). A problem that she sees is the denial of racism. There is little commitment to addressing racism including at the political level and this is the big problem. In the past couple of years a number of initiatives have come to a conclusion including NAPAR. This seems to send the message that racism does not exist anymore but this is far from the reality of lived experiences. Ireland is a small country and can do something. 28


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It is important to name racism. Racism is experienced by migrants but not only migrants and it is important to acknowledge the racism that is experienced by Travellers and other groups as well. We must not assume that legal status or national identity for example can protect a person from racism. Despite being an Irish citizen, Salome herself has been targeted and experiences racism on a regular basis. Therefore, it is important that we address racism in a way that includes everybody. Salome outlined two recent experiences that have had a significant and shocking impact. Research carried out by Akidwa into the experiences of women living in direct provision, I Am Only Saying It Now, which was published in early 2010, told of shocking realities of women’s experiences of racism and also those of their children. The women outlined experiences of abuse, how they are affected by racism and also articulated the impact of the recession on their experiences and attitudes around them. Also earlier in this year, we witnessed the tragic killing of Toyosi Shittabey6, a 15 year old boy living in Tyrellstown. Working in the community in Blanchardstwon, people have seen how a racist incident can damage the whole family and community. There was a feeling that there is nothing that could be done as those affected directly were migrants. The feeling of helplessness and the damage that is left behind is horrifying. 6

The killing of Toyosi Shittabey is widely held to have been racially motivated and is currently being investigated. 

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While there was a sense of helplessness, the community was also given a voice. Salome cited the words of a young person speaking about the death of Toyosi Shittabey in which he stated that, “racism is everywhere, it is in the schools, everywhere in Ireland there is racism. It is just being hidden�. During the week when people were being interviewed it became apparent that many people were keeping quiet and not talking about what was happening within their communities. In Ireland, racism is significant and is in all sectors. People who have been subjected to verbal and physical assault, damage to properties and discrimination. Although we see the racist attack, there are deep rooted prejudices. While it is important to consider the Framework Decision, it is also important to think about the holistic approach. The law cannot work in isolation. It is important to bear in mind that young people are affected by racism. Almost 50% of schools have reported racism in their schools7. We have come up with strategies of coping but how do we protect and help our children? Do the teachers know when children are bullied and what do they do? Our educational system is very important. Furthermore, research commissioned for example by the Equality Authority in 2009 provides evidence of discrimination in the area of employment, including in recruitment. 7

Results of the Behaviour and Attitudes (B&A) Survey on Racism, Interculturalism, and Resources for Minority Ethnic Students incorporating the Recommendations of the TUI Equality Council, Teachers Union of Ireland, April 2010. Available at www.tui.ie 30


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Ethnic and racial profiling is a huge issue but one that is consistently denied. However, anecdotal and direct experience reveals the reality of this practice. Salome has had first hand experience of racial profiling. She described one incident when she was travelling from Monaghan. The bus was stopped for twenty minutes. People were asked for identification. Some showed bank cards, which seemed to be sufficient but Salome’s passport was held for 20 minutes. This practice, she argued, compounds the stereotype that there is something criminal or suspicious about ethnic minorities. When people are treated in this manner, it makes you feel bad and concerned for the future. There is a growing hostility towards migrants which is worrying. It is difficult for migrants to access services, including hospitals and schools. Training is important. It can be difficult for people to feel part of the community. Racism is also evident on the street but sometimes people ignore the abuse in case they face a bigger problem when they respond to it. Taxi drivers for example, have been having a lot of problems. Salome highlighted the mixed experiences that people have with the police which are sometimes positive but at other times, negative. Referring to the National Action Plan Against Racism which she would like to see renewed, she said that we need to look at racist violence and discrimination as serious acts and advocated for the establishment of a national reporting system that is independent from the Gardaí.



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Akidwa would also ask for education and awareness raising to encourage the introduction of human rights education and in other institutions as well. Furthermore, she noted the need for research, explaining that good policies can only be formed through good research. Concluding, Salome expressed her disappointment at a lack of leadership and political will on the issue of racism. Acknowledging the importance of ENAR Ireland, she emphasised the importance also of having leadership from Government. There needs to be leadership, dialogue and change. Racism is a societal problem and requires a holistic approach. It is important to be able to discuss these issues and to consult with the migrant community and people who experience racism themselves. We cannot address racism without the knowledge of the people who experience it.

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2.5 P  rohibition of Incitement to Hatred Act 1989 and NGO approaches to hate speech: analysis and case study

Siobhan Cummiskey8, Solicitor, Irish Traveller Movement Independent Law Centre The focus of the presentation by Siobhan Cummiskey of the Irish Traveller Movement (ITM) was on two aspects. Focusing firstly on the Act including its origins and also on criticisms and suggestions for reform, the presentation went on to outline the ITM’s recent experience of reporting a racist incident, offering insights on how this was handled, from an NGO perspective. 2.5.1 Overview of the Prohibition of Incitement to Hatred Act 1989 The Prohibition of Incitement to Hatred Act entered into force in December 1989.  According to s.2(1), “it shall be an offence for a person to publish/distribute/display written material in any place other than a private residence (or inside a private residence but seen by persons outside) if the written material is threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred”. “‘Hatred’ means hatred against a group of persons in the State… on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation”.  Specifically, offences under Act include: S.2 publish/distribute/display… written material is 8

Note opinions expressed in the presentation are the author’s own. 

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threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred against person on grounds race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation; S.3 threatening, abusive or insulting visual images or sounds broadcast … if intended to stir up hatred or, having regard to all the circumstances, likely to stir up hatred; S.4 preparation or possession of threatening, abusive, insulting material intended or likely to stir up hatred. 2.5.2 Key Criticisms of the Act Key criticisms of the Act include: ⋅⋅ the lack of convictions under the Act which disguises the full extent of racism in Ireland. Furthermore, judgments are not recorded; ⋅⋅ it is impossible to define “threatening, abusive and insulting” and “hatred”; ⋅⋅ “incitement” is absent from body of Act and there is no definition of “stir up”; ⋅⋅ nor is there a definition of “offensive materials”; ⋅⋅ “likely stir up” – no need for intent; ⋅⋅ intent can be difficult to prove and is dependent on the audience; ⋅⋅ it is unclear whether section 2.3 of the Act refers to the internet; 34


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⋅⋅ the requirement for consent of the Director of Public Prosecutions (DPP) adds an extra level of bureaucracy; ⋅⋅ penalties9 are inadequate; ⋅⋅ genocide and war crimes denial is not included as an offence. Case Study: Social Networking Siobhan presented a recent case study involving a webpage on the social networking site, Facebook. The webpage was entitled, “Setting Aside Monday Afternoons to Hunt Kn*****s” Facebook Page. The page existed from January to May 2010, over which time it gained 8,306 members. The content of the page named specific towns and days to attend to kill Travellers10. Actions taken included reporting the hate speech to relevant authorities such as An Garda Siochána the Equality Authority, Department of Justice, Internet Hotline, Department of Community Equality and Gaeltacht Affairs and the Office of the Minister for Integration; politicians including senators and TDs. It was also reported to other NGOs supporting the recording/reporting of racist incidents and referrals. The ITM also reported the webpage to Facebook.

9

Summary conviction max £1,000 fine/imprisonment max 6 months/both, or conviction on indictment max £10,000 fine/imprisonment max 2 years/both.

10

Some of the statements on the webpage included: “Promote the use of k*****r babies for bait!”; “the whole lot should be brought to a farm bin [sic] Cavan and shot”; “dats what we should all have under our beds for the blastin the heads off the stinkin dirty rotten inbred c***s”. 

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A number of actions and outcomes followed as a result of the ITM intervention. The webpage was removed from Facebook (although the reason for its removal is unknown). There was a meeting between the Department and the Irish Internet Hotline. Furthermore, the incident was recorded as a criminal complaint. The process highlighted a number of issues including a lack of awareness in and support from An Garda Siochána. It achieved some measure of clarification with regard to jurisdiction on the internet. 2.5.4 Suggestions for Reform - A Literature Review Broaden the Scope of the Act: ⋅⋅ Insert a section in the Act that specifically addresses the issue of racism on the internet (National Committee on Racism and Interculturalism (NCCRI) Report 2001); ⋅⋅ Include the offence of intentional publication through a computer system; however, ISPs should only be liable if intent is proven (Daly 2007); ⋅⋅ Defences should be broader and more general than incapacity, ignorance and bona fides in order to protect free speech, e.g. fair comment on matters of public interest and protect political expression relating to religion and expression based on religious texts (Daly 2007); ⋅⋅ Broaden scope of the Act to include denial of genocide and war crimes etc. (Daly 2007). This is in line with the Framework Decision;

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⋅⋅ Include hatred against members of the group as well as the group itself (Daly 2007); ⋅⋅ Dispense with “threatening, abusive and insulting” and use just the broad phrase “incite to hate” in order to include more subtle forms of hate speech (Keogh 2000); ⋅⋅ Hatred is an extreme emotion; introduce a lower threshold of racial vilification or hostility (Keogh 2000). Limit the Scope of the Act: ⋅⋅ Narrow the focus of the Act in order to make it more effective, for example use the word “threatening” only as used in the new Racial and Religious Hatred Act 2006 in England -as opposed to “threatening, abusive or insulting” (Daly 2007); ⋅⋅ Protect against abuse of the Act by the DPP by making the offences less vague and broad (Daly 2007); ⋅⋅ Use public order and non-fatal offences act to deal with offence against person, use 1989 Act only for private communications. This will allow a sufficient nexus between expression and harm and will fulfill the requirement of the Additional Protocol (Art 4) (Daly 2007); ⋅⋅ Limit to the crime to intent to cause a breach of the peace – a public order offence – as this will protect free speech (Cowhey 2006). Modify the Act: ⋅⋅ to improve its clarity (NCCRI 2001 and Daly 2007) 

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External Assistance to Act: ⋅⋅ Introduce an intermediary body that will make the Act more accessible and understandable to the public (NCCRI Report 2001); ⋅⋅ Report judgments of the District Court and Circuit Court on the Act to add clarity to the law (Daly 2007); ⋅⋅ Include a Code of Practice for the prosecution (Daly 2007). 2.5.5 Conclusions and Recommendations In conclusion, there are a number of different reforms that need to come in as a result of the Framework Decision and we would certainly disagree with the position of the Department that this is something we already comply with under Irish law. A number of recommendations can also be made. The first thing is that the internet jurisdiction needs to be clarified. The Framework Decision states that if you committed the offence while physically in the jurisdiction that that should be enough to allow the person be prosecuted for the crime in that jurisdiction - where the site is hosted should not be relevant. We are increasingly finding hate speech on the internet as opposed to other media. On the Facebook page in question, you could see where the people making the posts went to college, where they were from and where they socialised. These were Irish people, it was about Irish people, it was an Irish issue and an Irish crime and it should be dealt with in that way.

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An intermediary body should be established. This was something that was raised by the NCCRI back in 2001. With the limited budgets of the State in mind this is the perfect point for the Garda Racial and Intercultural Office (GRIO) to step in. According to the Citizen Information website, the GRIO are bringing in a reporting mechanism whereby you can report crimes to them and they will liaise with your local Garda station. That is something that would have been extremely helpful in our case, if they had informed Gardaí of how these crimes can be prosecuted and could be more informed about the Act. That kind of intermediary body is already in place and it would be cost effective. With regard to the terms of the Act being defined, the judgments need to be reported. This does not need to be in any official way as with, for example, a High Court case. A body, possibly an existing body, could monitor District Court cases and could be informed any time the DPP is taking a prosecution. We would then have more information on how these crimes are defined. This may also assist in improving and expanding upon the statutory definitions. Finally, there were serious problems with this legislation before the Framework Decision ever came about and it has been under review for more than a decade. We do need to look at the original problems with it as well as examine it in the context of the Framework Decision. Now, more than ever, we need this issue to be addressed. If the Department’s position is and continues to be that we are fully compliant with the



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Framework Decision, it would be disappointing as there are many areas pointed out over the course of the seminar, where we are not in compliance.

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Section Three:

Summary of Discussion A key objective of the seminar was to provide space for discussion and debate. To this end, questions and clarifications were posed after the first two inputs from the Kenneth Maher representing the Department of Justice and Paul Iganski. A summary of the questions and responses is outlined in section 3.1 below. Following the inputs from the NGO perspective offered by Salome Mbugua from Akidwa and Siobhan Cummiskey of ITM, the discussion was opened up to the floor. An overview of the main points of discussion and debate is presented in section 3.2 below.

3.1 Questions and Clarifications 3.1.1 Introduction Anastasia Crickley reminded participants of the historical reality that the Framework Decision partly came about because the Directive on racism and discrimination which was introduced at the time, could not deal with what were in fact some of the most serious issues people were concerned about when they were campaigning for the Directive, because of the nature of directives. Criminal law, it was noted is not the remit of the EU Council. However, the EU Council can determine minimal rules relating to elements of criminal acts and their accompanying penalties



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and that is where the Framework Decision comes in. There is a principle of subsidiarity, a principle that in fact Ireland spent some time invoking under our common law procedures. While what Kenneth had outlined gave us a very reasonable and useful overview of the progress that had been made, there were a variety of views around the room about how that progress had moved. The space for questions provided an opportunity to hear the range of views. 3.1.2 Questions and responses A number of questions were asked of the two speakers including: ⋅⋅ Xenophobia. It was pointed out that we have failed to deal with xenophobia despite the mandate from the World Conference on Racism in Durban. The Framework Decision applies also to xenophobia and it is important that this be considered. ⋅⋅ Data. There was a request for data to be provided on charges and convictions under the 1989 Incitement to Hatred Act; the need for disaggregation of data from the Garda Ombudsman was highlighted as well as need for more disaggregation of Central Statistics Office (CSO) data including in relation to crime type; and access to data. ⋅⋅ Legislative differences between Irish and UK legislation. ⋅⋅ Confirmation of the position of the Government regarding compliance with the legislation and related questions on the adequacy of certain provisions including in the area of penalties and aggravated sentencing. 42


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⋅⋅ Aggragaved offences and sentencing. Questions were asked about how this was dealt with through current legislation; the limitations of the current mechanism; reference to Schweppe/Walsh research11 which highlighted potential difficulties and impact on prosecutions. ⋅⋅ Intent. It was pointed out that one of the difficulties with the Incitement to Hatred Act is the difficulty proving intent. References to aggravated sentencing also suggested difficulties proving motivation. However, it was pointed out that proving intent should not be used as an excuse as this is a common concept in criminal law and a number of indicators to prove intent are regularly used in other contexts. ⋅⋅ Penalties. Usually the penalty is five years to justify an arrest (with only occasional exceptions). The two year penalty poses further limitations. This is a clear indication that the existing legislation in its current form could not satisfy the requirements of the Framework Decision. 3.1.3 Response With regard to differences between UK and Irish legislation, Kenneth Maher highlighted two main differences between Irish and UK legislation. First of all, the UK have specified for aggravated offences, under section 2 of the Crime and Disorder Act of 1998 which includes ‘racially aggravated assault, racially 11

Report commissioned under the National Action Plan Against Racism, entitled Combating Racism and Xenophobia through Criminal Law and published in December 2008. The report is available at http://tinyurl.com/ schweppe-walsh 

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aggravated criminal damage, racially aggravated public order and racially aggravated harassment’. We do not have racially aggravated offences in this jurisdiction. He argued that part of the issue with having aggravated offences is that they are more difficult to prove and it is harder to secure convictions in cases where you have racially aggravated sentences. This is because of the problem with having specific aggravated offences, two elements must be proven; the ‘mental element’ and also that the physical act or event took place. In the case of an aggravated offence, you have to prove that there was a racist element to the crime. In Irish legislation, one must prove that the person was intentional or reckless in their actions and committed the crime. Then, where there was a racial motivation, the aggravated circumstance can be taken into account. Secondly, the other difference is that under the UK legislation�, hatred is defined as ‘hatred against a group of persons with reference to colour, race, nationality including citizenship or ethnic or national origins’ whereas in the Irish case, the definition is wider and includes ‘hatred against a group of persons on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community, or sexual orientation’. Those are the main differences. Article 4, which covers offences outside of the 1989 Incitement to Hatred Act, leaves the decision to take the aggravated circumstance into account with the judiciary. An official from the Office of the Minister for Integration added that the 1989 Act is only relevant in a small number of cases; and assured 44


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that if the State does not comply, infringement proceedings will be put in place by the European Commission. The Framework Decision reflects a minimum standard negotiated between 27 Member States and argued that Ireland is already at that standard. It remains the Department’s position that Ireland complies with the law. One of the features of the Framework Decision, is that it has to take into account of a number of states. On the question of the penalty, he stated that the penalty of one to three years was put in for the benefit of continental states and as such the opinion is that the two year penalty in Irish legislation is compliant. Paul Iganski offered a number of clarifications and, as he said, different perspectives. He concurred that the intent of Article 4 of the Framework Decision would capture more of the issues in relation to racist offences than incitement to hatred legislation. With regard to the number of offences reported as compared to convictions in the UK, he observed that some of the data referred to was 1998 data. However, more recent data and crime reports show a greater consistency between the number of incidents and prosecutions, demonstrating that the number of prosecutions has increased considerably. He explained that previously the ‘mental element’ had to be proven and that this did seem to be an obstacle to prosecution. However, conditions have changed and now it is the act that needs to be proven. For example, it is enough to prove that an offender uttered the words but it is not necessary to prove that he thinks this.



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With regard to the difference between incidents and prosecutions, he noted that a number of the incidents reported are not crimes. However, they present valuable information for police intelligence. Furthermore, sometimes cases do not get to court; there may be a lack of support for the victim or the person might simply want to report the incident without taking further action. One of the problems highlighted in the 1990s was that of judicial discretion. Research shows that where judicial discretion was available, it was only applied in 15% of cases. Subsequently, racially aggravated offences were enacted. Anastasia Crickley suggested in conclusion, the session highlighted that incitement to hatred legislation is limited to a relatively small number of incidents12. The Framework Decision itself is a limited instrument but the purpose of the seminar was to see how we can get the maximum from a limited instrument. A point that seemed to be emerging is the need to go beyond both of these instruments and the seminar provided us with space to have that timely debate and discussion. Part of the problem is that we have awaited the Framework Decision and a review of the 1989 Act in order to actually look to the gaps that people are concerned about in here. There are issues that the Framework Decision and incitement to hatred legislation might address but there are other issues also. However, we need to ensure that while 12

While the number of incidents may be low, the imapct of such incidents can be significant and widespread. 46


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the instruments are limited, that they are implemented as well as possible.

3.2 Discussion and debate The final section of the seminar allowed for lengthy discussion and dialogue between participants and panellists. A summary of the main points of the discussion is outlined below. Legislation and implementation: from intent to impact. In relation to Paul’s contribution, it is important t that we remind ourselves about the reality and the potential danger and damage that racially motivated acts have on particular groups of people, from the psychological, emotional and physical point of view. We are not just talking here in the abstract, of something that is academic or removed from people’s daily experience. It is real, it has an impact and it is dangerous. It was argued that the legislation as it currently stands, is insufficient. This is clear with regard to the Incitement to Hatred Act 1989 which has been proven and demonstrated time and time again to be completely insufficient. There have been a very, very small number of successful prosecutions. One of the biggest limitations of the legislation is that you have to prove that there was intent to incite hatred. How can you demonstrate this, how can you prove that the intent was to incite hatred. The best way of measuring is in terms of the consequence, the harm, the impact – to move away from the opinion, whether the thought was there or not and move



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to outcomes and consequences and the harm that is inflicted on the individual and groups of people. The Incitement to Hatred Act is clearly inadequate. Legislation – aggravated offence. The point that Paul highlighted in relation to impact and harm of racist crime was welcomed and it was strongly recommended that the focus shift from thought or intent to impact and consequence. To be able to prosecute for aggravated offences under the law is essential. By inference then, not including this in the law gives the majority population the advantage in ‘race’ crime. People know they will not suffer because of it. All of this is related to power and power system; in the case of racially motivated incidents, there is disadvantage on top of disadvantage. Three key reasons underpin the provision of aggravated offences. They are targeted in a general sense as a deterrent, demonstrating that incidents are taken seriously. They are targeted at ordinary, everyday criminals and they are targeted at the victims. Difference between systems in Ireland and the UK. A number of differences between the Irish and UK system were identified apart from the legislation itself. It was pointed out that because of these differences, a comparison between data is not a comparison of like with like. What needs to be looked at is the ratio between charges and convictions. Paul’s clarification was welcomed and it was pointed out that a number of reports

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in the UK would be dealt with in the community through mediation – such a practice might be adopted in the Republic of Ireland also. Judiciary. Leaving consideration of the racist element as an aggravating factor in sentencing to the discretion of the judiciary, was questioned. In Ireland, it is not working. Clearly, this approach did not work in the 1990s in the UK. If we are serious about this, and hatred is a serious issue, it was stated that we should amend our legislation. The Equality Authority highlighted an initiative they are developing which involves the Judicial Studies Institute (which is the training body for the judiciary). The Equality Authority has applied for EU funding under the Progress initiative for 2011. One of the elements is that the Judicial Studies Institute would use that funding to produce a bench book on managing diversity. Policing - ethnic profiling. The practice of ethnic profiling was raised by Salome and was elaborated on further in the course of the discussion. It was pointed out that the practice of ethnic profiling does not happen just at frontiers but on the street and in shops. There is some scope within the Immigration Act in this regard and there is a sense that if a person ‘does not look Irish’, s/he will be stopped and asked for a passport. Where a person does not have a passport or give a satisfactory reason, it was explained that s/he can be held or fined. Incarceration can be up to a year and the fine up to €3,000. It was stated that it



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has become common practice now for Irish people who do not ‘look Irish’ to carry their passports with them. This is a serious problem and stopping people in this way can lead to hatred. The Equality Authority is also conscious of the question of ethnic profiling. They have a number of opportunities to discuss such issues with the Gardaí, including through the Diversity Strategy Board. They are interested in this question and advised people that if they have further evidence, to let them know. Policing – internal communication. Weaknesses in the system within policing were identified in light of the UK experience. It was pointed out that in terms of reporting, instructions should be given at the stations, where the Garda ‘sniffs’ incitement to hatred crime or a possible crime. That Garda should then contact the GRIO. Therefore, the process is one from the station to the centre. However, the participant demonstrated through his experience that this process does not always happen. Other stakeholders – discuss and debate. We should not assume that we all have information and for this reason at least, it is important to come together to discuss and debate. Those experiencing racism and civil society organisations have an important role to play and must be considered as key stakeholders in the development of legislation and policies that are likely to impact on their lives. In this regard, the seminar today was useful, bringing together a range of stakeholders and enabling the NGO perspective to be heard. 50


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Sites of racism – social networking. With regard to social networking, organisations including Pavee Point and ITM amongst others have contacted relevant agencies about racist webpages. However, the companies themselves are also an important party whose role needs to be considered. The question was raised about the company that manages the site and their responsibility to monitor including through corporate social responsibility. It was argued that the social networking companies such as Facebook, should also take responsibility for this. Reporting and recording. Dublin City Council (DCC) highlighted two initiatives. The first is the development of a possible framework at a city level for the monitoring, with ENAR Ireland. This is a process that involves all stakeholders. Secondly, with the support from the Minister’s office, DCC will be running the Cities Campaign Against Racism on the public transport network in the Autumn which should show a very visible campaign in terms of raising awareness on the issue. There was strong support for the monitoring of racist incidents by participants and participants were pleased to hear that a a system is emerging. A reporting and monitoring system is needed in order to ensure that fewer cases emerge into the criminal system because less cases happen. Another participant raised the question of how incidents are counted. Taking the Facebook webpage for example, there were over 8,000 friends of the site. Does this then count as one incident or as 8,000 incidents? 

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From the North of Ireland perspective, information across the equality strands and the strand of hate crime has been gathered for a long time, including by the PSNI (Police Service Northern Ireland). It is one thing to gather it; it is quite another to start analysing it. In fact, that is much easier said than done. But it needs to be done and it needs to be done a lot better.

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Section Four:

Conclusions and Next Steps 4.1 Conclusions The session highlighted limitations of existing legislation including at the national and European level. The Framework Decision itself is a limited instrument but the purpose of the seminar was to see how we can get the maximum from a limited instrument. A point that seemed to be emerging is the need to go beyond existing instruments. Part of the problem is that we have awaited the Framework Decision and a review of the 1989 Act in order to actually look to the gaps that people are concerned about in here. There are issues that the Framework Decision and incitement to hatred legislation might address but there are other issues also. However, we need to ensure that while the instruments are limited, that they are implemented as well as possible. There is a process of moving forward with the Framework Decision and it was clear from the seminar that we need to continue this discussion. What people here are looking for is best practice. They are looking for flanking measures and the awareness with regard to them. Some of the discussion on racially aggravated offences and sentencing highlighted that they may have the effect of generating awareness about the possibility of convictions; of the possibility that racist motivation might be considered an offence. Through this recognition, people may also feel that it is worthwhile to report a racially motivated offence or incident. 

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This is part of an ongoing and urgent discussion. Many of the participants have been concerned about the incitement to hatred legislation for years and have awaited the Framework Decision as something that might provide a response to it. Whether it can or it cannot is a matter for discussion and different viewpoints have been presented. It is not a question of whether it can or cannot, it is a question of providing and developing appropriate legislation to address racism as a crime and indeed to address associated areas of hate crime. Some of these are difficult enough to define. It is useful to note however that other bodies such as the OSCE did move towards defining hate crime and moved towards looking at some of the features which were more or less recognised and agreed by the members of the OSCE in that area. Other instruments are also emerging, for example, the Stockholm Programme to which Ireland is committed and which opens up some areas for further discussion. This is a programme to which the European Union and the Irish Government has made a commitment to. There are areas in the Stockholm Programme that are relevant. There is the follow through to Durban II and the national commitments under CERD as well as our commitments under the Framework of the Council of Europe. We have international and European commitments under which we are now reporting. We have enough of a framework for a starting point to this discussion and we have on board a range of constituents whose participation in the seminar was welcomed, including

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from the Department at national level, the Departments that are associated, An Garda Siochána and Dublin City Council Integration office, civil society organisations and colleagues from the North of Ireland. This is something that should continue. There is an urgency to it and we need to inform it by reference to the other frameworks that this country and other members of the European Union are committed. The historical reality is that the Framework Decision partly came about because the Directive on racism and discrimination which was introduced at the time, could not deal with what were in fact some of the most serious issues people were concerned about when they were campaigning for the Directive. Continued discussion and action need to take place in a focused way and in the fairly immediate future because what we are trying to grapple with is a timescale that is limited and issues that are getting worse.

4.2 Next Steps 4.2.1 Recommended responses to Government: ⋅⋅ Greater consideration needs to be given to options for the inclusion of racially motivated offences and effective application of racially aggravated sentencing. ⋅⋅ Strengthen our capacity to prevent and address hate speech including through strengthening incitement to hatred legislation. 

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⋅⋅ There needs to be a shift in focus from intent to impact – and this needs to be reflected in legislation and at sentencing. ⋅⋅ A holistic approach to the implementation of the law, with all stakeholders – including the police and the judiciary – playing their role to the full is esential. ⋅⋅ Greater recognition of the role of a range of stakeholders including civil society organisations and those experiencing racism, can help address the gap between the need on the ground and the legal options currently available. Effective communication between relevant government departments and statutory bodies with civil society organisations is vital to developing responses to racism including through criminal law. 4.2.2 Recommended Next Steps for ENAR Ireland: ENAR Ireland is grateful to all who participated in the seminar. A number of recommendations and next steps were identified in the course of the seminar and ENAR Ireland assures participants and other stakeholders that the seminar represents the beginning of a process to which we are fully committed. Next steps identified for ENAR Ireland include: ⋅⋅ Continue to promote criminal law as a mechanism to addressing racism and facilitating discussion between different stakeholder groups.

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⋅⋅ Utilise other frameworks and programmes to raise awareness and promote mechanisms to address and prevent racist crime, including at a European and international level. ⋅⋅ Specifically, raise awareness and utilise opportunities through the Stockholm Programme. ⋅⋅ Promote awareness of and participation in the development of the standard framework for the monitoring of racist incidents with relevant stakeholders. ⋅⋅ Provide the space for sharing of information, discussion and consultation to ensure that the voice of civil society organisations and those experiencing racism is heard at all stages of legislative and policy development.



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Appendix I: Biographies of speakers Anastasia Crickley is Head of Department at Department of Applied Social Studies, NUI Maynooth. Anastasia is currently the Irish representation on the Management Board of the Fundamental Rights Agency, which she previously chaired. Anastasia was recently appointed to the UN Committee for the Elimination of all forms of Racial Discrimination (CERD). Paul Iganski PhD., is Senior Lecturer in Social Justice and Director of Postgraduate Research in the Department of Applied Social Science, Lancaster University, UK. He specialises in research, writing and teaching on, ‘hate crime’, racist violence, anti-semitism, and human rights. His most recent books include an edited volume, Hate Crime. The Consequences of Hate Crime, (Praeger, 2009), and ‘Hate Crime’ and the City (Policy Press, 2008) - a monograph which discusses his own research findings on the harms of hate crime in particular and challenges for the criminalisation of ‘hate’. Much of his research has been commissioned by, or in partnership with, NGOs. Currently, he is serving as project co-ordinator for a twenty-nine country study of racist violence in Europe being carried out by the European Network Against Racism. Kenneth Maher is employed in the Department of Justice and Law Reform. He joined the Criminal Law Reform Division of the Department two years ago and is involved in the process of preparing and implementing legislation. His areas of responsibility with regard to legislation include Data Retention, 58


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Sexual Offences, Anti Human Trafficking and Racism and Xenophobia. He has a BSc. in Computer Applications, an MSc. in Electronic Commerce and a BA in Law. Salome Mbugua is the Director of Akidwa. Akina Dada wa Africa (AkiDwA; Swahili for sisterhood) is a minority ethnicled national network of African and migrant women living in Ireland. Akidwa was established in August 2001 by a group of African women to address the needs of an expanding population of African and migrant women resident in Ireland. AkiDwA’s advocacy approach is based on a gender perspective and the organisation promotes an equal society, free of racism, discrimination and stereotyping. Siobhån Cummiskey is the managing solicitor of the Irish Traveller Movement Independent Law Centre, which works to promote the rights of Travellers through strategic litigation, legal education and policy work. She is a member of the Human Rights Committee of the Law Society of Ireland and a board member of the Irish Council for Civil Liberties. Catherine Lynch is the National Coordinator for ENAR Ireland. ENAR Ireland is a national network of organisations in Ireland working collectively to highlight and address racism. ENAR Ireland acts as the Irish Coordination for the European Network Against Racism (ENAR), a network of over 700 organisations across the European Union.



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Appendix II: Summary of the EU Framework Decision on Combating Racism and Xenophobia This framework decision provides for the approximation of laws and regulations of the Member States on offences involving racism and xenophobia. Racist and xenophobic behaviour must constitute an offence in all Member States and must be punishable by effective, proportionate and dissuasive penalties of a maximum of at least one to three years of imprisonment.  his framework decision applies to all offences committed: T ⋅⋅ within the territory of the European Union (EU), including through an information system; ⋅⋅ by a national of a Member State or for the benefit of a legal person established in a Member State. To that end, the framework decision provides criteria on how to determine the liability of a legal person; ⋅⋅ certain forms of conduct as outlined below, which are committed for a racist or xenophobic purpose, are punishable as criminal offences; ⋅⋅ public incitement to violence or hatred directed against a group of persons or a member of such a group defined on the basis of race, colour, descent, religion or belief, or national or ethnic origin; ⋅⋅ public dissemination or distribution of tracts, pictures or other material containing expressions of racism and xenophobia; 60


Racist Crime: Seminar Report 2010

⋅⋅ public condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8) and crimes defined in Article 6 of the Charter of the International Military Tribunal, when the conduct is carried out in a manner likely to incite violence or hatred against such a group or a member of such a group; ⋅⋅ instigating, aiding or abetting in the commission of the above offences is also punishable. With regard to the offences listed in Article 1, Member States must ensure that they are punishable by: ⋅⋅ effective, proportionate and dissuasive penalties; ⋅⋅ terms of imprisonment of a maximum of at least one to three years. In all cases, racist or xenophobic motivation is considered to be an aggravating circumstance or, alternatively, such motivation may be taken into consideration when determining the penalties to be applied. With regard to legal persons, the penalties must be effective, proportionate and dissuasive and must consist of criminal or non-criminal fines. In addition, legal persons may be punished by: ⋅⋅ exclusion from entitlement to public benefits or aid; ⋅⋅ temporary or permanent disqualification from the practice or commercial activities;



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⋅⋅ being placed under judicial supervision; ⋅⋅ a judicial winding-up order. The initiation of investigations or prosecutions of racist and xenophobic offences must not depend on a victim’s report or accusation. Source: ‘Framework Decision on combating racism and xenophobia’, available at http://tinyurl.com/framework-decision

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Appendix III: List of participants Participants included: First Name

Surname

Organisation

Anastasia

Crickley

Member EU FRA Management Board/CERD

Aneta

Dabek

Embrace

Anne

O’Gorman

Office of Minister for Integration (OMI)

Bernadette

Phelan

OMI

Carol

Baxter

Equality Authority

Catherine

Lynch

ENAR Ireland

Chinedu

Onyejelem

Metro Éireann

Claire

McCarthy

NASC

Delphine

O’Keefe

MRCI

Eilish

Corcoran

Longford Women’s Link

Fiona

Mc Gaughey

Consultant

Gerry

Folan

Dublin City Council

Hilka

Becker

Immigrant Council of Ireland (OMI)

Janet

Lacey

OMI

Jemma

Lee

NUIM

Jolena

Flett

NICEM

Justyna

McCabe

Challenge of Change, Newry & Mourne Council

Katerina

Skrebska

Newry & Mourne

Ken

McCue

SARI

Kenneth

Maher

Department of Justice

Luke

Bukha

Anti Racism Network

Maire

Ní Shuilleabhain

ICI

Maria

Onyemelukwe

NUIM

Marian

Tannam

NGO Alliance

Martin

Collins

Pavee Point

Monica

Fitzpatrick

Niacro

Paul

Iganski

University of Lancaster

Rachel

Doyle

National Women’s Council

Reginald

Okoflex Inya

New Communities Partnership

Salome

Mbugua

Akidwa



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Website

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Racist Crime