Hate and Hostility Research Group

University of Limerick

Castletroy

Limerick

10 September 2015

Committee Clerk

Committee on Justice, Defence and Equality

Leinster House

Kildare Street

Dublin 2

Dear Committee Members,

We are writing to you in relation to the Heads of the Criminal Justice (Victims of Crime) Bill 2015 and beg your indulgence to allow us to make a very late submission on the Heads of the Bill.

We are co-Directors of the Hate and Hostility Research Group at the University of Limerick, and have been working on issues related to and involving the Victims’ Directive for some time. We enclose here a short submission which outlines briefly some recommendations we have in relation to the Heads of Bill. We hope you find them useful.

If you would like to contact us, our email address is or by phone on 061 202682.

Thank you for taking the time to consider this submission.

Sincerely,

Jennifer Schweppe and Amanda Haynes

Co-Directors, Hate and Hostility Research Group

University of Limerick

About the Hate and Hostility Research Group

The Hate and Hostility Research Group (HHRG) was set up by academics in the University of Limerick to initiate scholarship in the area of hate and hostility studies in Ireland from an interdisciplinary perspective. The group recognises the importance of working in cooperation with community, civic and government partners. Through cross-sectoral engagement, we endeavour to progress dialogue between all stakeholders in the area. Our aims are fivefold:

First, to contribute to a deeper understanding of the specificities of hate crime and hate incidents from a theoretical perspective;

Second, to foster an appreciation of the relevance of intersectionality to hate crime and hate incidents with a view to developing critical mass among the stakeholders;

Third, to generate a body of empirical research in an area which is under-researched in an Irish context;

Fourth, to contribute to evidence-based policy and legislative developments in the area;

Fifth, to understand and develop civic and educational means to combat hate crime.

Jennifer Schweppe

Jennifer Schweppe is a lecturer in law at the University of Limerick. Her work in the area of hate crime looks at the criminalisation of bias motivation, and explores the potential of introducing hate crime offences in an Irish context. She is co-editor of two major collections in the area of hate crime with Oxford University Press and Palgrave Macmillan which are forthcoming in 2016, and has published in the Journal of Hate Studies, the Oxford Handbook Online in Criminology and Criminal Justice, the Northern Ireland Legal Quarterly and the Irish Jurist. She was a founding co-Director of CUES (Contemporary Understandings of Emotions in Society) from 2009-2013. She is currently co-director of the International Network for Hate Studies. She is also founder and co-Director of the University of Limerick based Hate and Hostility Research Group, the only academic research group in Ireland dedicated to exploring and understanding hate crime in an Irish context. Her work in the area of hate crime with Dr Amanda Haynes has been funded by the Irish Research Council, the Irish Council for Civil Liberties and the European Union.

Amanda Haynes

Amanda Haynes is a senior lecturer in sociology at the University of Limerick. Her research interests focus on hostility towards difference, including the lived experience of hostility, institutional responses to targeted hatred and the public and political discourses which inform actions and inaction in respect of diversity. Her current research projects centre on experiences of and criminal justice responses to hate crime in an Irish context and public and political discursive constructions of migrants. Her recent publications include Out of the Shadows: Legislating for Hate Crimes in Ireland (with Jennifer Schweppe, James Carr, Niamh Carmody and Shannen Enright, 2015); A Life Free From Fear (with Jennifer Schweppe and James Carr, 2014); ‘A Clash of Racialisations: The Policing of 'Race' and of Anti-Muslim Racism in Ireland’ in Critical Sociology (with James Carr, 2013); 'Media Representations, Stigma and Neighbourhood Identity' in Social Housing, Disadvantage and Neighbourhood Liveability: Ten Years of Change in Social Housing Neighbourhoods (with Eoin Devereux & Martin Power, Routledge, 2013); and 'Why bother seeing the world for real?' Google Street View and the representation of a stigmatised neighbourhood' in New Media and Society, (with Martin Power Patricia Neville, Eoin Devereux and Cliona Barnes).

Submission on the Heads of the Criminal Justice (Victims of Crime) Bill 2015

Jennifer Schweppe and Amanda Haynes

Hate and Hostility Research Group, University of Limerick

Introduction

The Hate and Hostility Research Group at the University of Limerick, with researcher James Carr, have just completed a year-long project which evaluated the treatment of the hate element of crimes under existing Irish law and the suitability of various options for legislative reform (Haynes et al 2015). The research was commissioned by the Irish Council for Civil Liberties and supported by the NGO Working Group on Hate Crime. As part of the research, the HHRG examined the requirements placed on the State by the Victims’ Directive as well as other international agreements in the context of hate crime. Further, in seeking to determine those groups which should be explicitly named and protected by the proposed hate crime legislation, we found the Victims’ Directive particularly instructive.

We make this submission to the Committee on Justice, Defence and Equality on the Criminal Justice (Victims of Crime) Bill 2015. It is not intended to be exhaustive, but seeks to address two key elements of the Directive, and analyse their adaptation in the Heads of the Victims of Crime Bill: first, the list of named and protected categories; and second the manner in which the obligations in relation to victims of hate crime under Article 22(3) of the Directive have been transposed.

Victim’s Directive

In its Preamble, the Victims’ Directive provides that victims of crime should be treated in a ‘respectful, sensitive and professional manner without discrimination’ on a number of grounds, such as:

“race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, gender, gender expression, gender identity, sexual orientation, residence status or health.”

This list, originating in the Charter of Fundamental Rights, is particularly useful, highlighting as it does a range of characteristics which may impact on the manner in which an individual is treated by the criminal justice system. In examining this part of the Directive, two questions arose for us in the context of the list.

The first issue is that, based on our enquiries, the list does not definitively include people who are intersex. In a recent publication on the rights of intersex persons, FRA (2015, p.3) notes that “Intersex civil society organisations are advocating that a specific ground, ‘sex characteristics’, best identifies their needs when it comes to protection from discrimination” By not explicitly mentioning intersex, or sex characteristics, the Directive runs the risk of further marginalising an already marginalised group. Similarly, by not explicitly mentioning ‘social class’ in this context, the list of protected characteristics runs the risk of further marginalising individuals from the criminal justice process.

What is important to observe in this is the inclusion of ‘such as’ prior to the list of identified characteristics: the list is not to be seen as exhaustive but rather indicative, and can be added to by Member States in a manner which is culturally and historically appropriate (see also, OSCE/ODIHR 2009). However, in transposing the Directive it is vital that those characteristics mentioned are both culturally relevant but also in keeping with international best practice. In excluding particular groups the implicit message being sent by the legislature is that individuals who are members of such groups are not worthy of protection (Perry 2001).

Head 6 of the Heads of Criminal Justice (Victims of Crime) Bill 2015

Head 6 of the Heads of the Criminal Justice (Victims of Crime) Bill 2015 places an obligation on every member of An Garda Síochána to make a number of assessments in relation to the needs of each victim who makes a complaint and make a decision as to whether that victim could either benefit from special measures provided under Head 15 of the Bill; or whether, in giving evidence, that victim would benefit from any measure provided for in Head 16 of the Bill.

We are of the view that this is an extraordinary burden to place on both the Garda and the victim at this often traumatic stage in the investigatory process. Our research on hate crime in Ireland, published in Out of the Shadows (2015, p.38), illustrates complex emotional responses to victimisation including anger, guilt and fear. :

“… people are you know reporting sleep disturbances, anxiety attacks, depression. We had women who twice reported miscarriage due to stress related issues from verbal abuse by their neighbours. … and on children the abuse has huge impact. I was working with a mother last year whose son was abused by [a] neighbour physically, verbally, they suffered property damage – spray paint on the house. The child tried to kill himself twice. He poured detergent over his skin because he thought it would make him white. The other issue was a young girl in a school. It was a one off incident where she was told you’re not welcome, go back to your own country. She wrote a letter where she expressed her wish to die. And that was a one off incident so we can see a pattern of incidents or one off incidents can have extremely damaging effect on young people.”

(Teresa Buczkowska, Immigrant Council of Ireland)

Meeting the challenge of determining appropriate supports, requires a capacity to recognise the individuality of each victim’s response in addition to appreciating needs that emanate from their age, disability, ethnicity or other fundamental characteristics. A failure to correctly assess victims’ needs will place the burden of care back onto the victim and their family. Out of the Shadows documents the case of one parent of a victim with an intellectual/developmental disability, who having no access to other supports, is paying privately for therapy for her child in part to address the trauma of a degrading disablist assault.

“… he’s suddenly got really distressed and they said he was having a meltdown. … he did get very, very upset … I think he’s still very troubled about certain events.”

Our interviews revealed the case of one family of a victim with a disability who withdrew from the criminal justice process, consequent to being informed that the victim did not in fact qualify as a person with a disability for the purposes of the court proceedings. The victim has a diagnosed developmental disorder and is in receipt of disability allowance. The family relate that specialist Garda interviewers informed them that the victim’s particular diagnosis is not regarded as a disability for the purposes of the court. The family characterises the victim as having the emotional age of a seven year old and recounted characteristics which speak to many of the “significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behaviour, which covers a range of everyday social and practical skills” which characterise intellectual disability (American Association on Intellectual and Developmental Disabilities 2015). Nonetheless, the family were informed that if their child, having reached adulthood by the time the case went to trial, recanted his statement in court he would face legal consequences:

“… when he’d gone out of the room they said, ‘Well of course if he changes his statement he’d be considered a hostile witness. … [I asked] ‘What does that mean?’ and they said, ‘Well he could be done for contempt of court’.”

Victims’ capacity to access justice is dependent on the guarantee of appropriate supports in engaging with the criminal justice system itself. Out of the Shadows highlighted that the decision to report a crime and make a formal statement is challenging for victims who fear that the process of seeking justice will cause them further harm. Further, while some victims will go on to make a statement, very often they will not do so for a multiplicity of reasons. The supports provided by the Bill should be available from the first point of contact if victims are to be facilitated to make a positive decision to make and pursue a complaint.

The assessment of victim’s needs must be expert, timely and consultative. Further, it is vital that this decision can be postponed, so as to allow the victim to delay engaging with this process until after making their initial report, or to avail of services at a later point though they initially felt they were not required. Further, the process should be subject to review where such services are not provided. All victims of crime should be given information as to the supports available in order to make a decision as to whether he or she wishes to apply for such a review, or apply for such supports at a later date.

Protected Characteristics

In making the assessment under Head 6(1), the Garda (or preferably an expert assessor) should, according to Head 6(2)(a), have regard to the personal characteristics of the victim, including:

“age, gender and gender identity or expression, ethnicity, race, religion, sexual orientation, physical or mental health issues and ability to community.”

The list of those characteristics that are included here are much more limited than those in the Directive, and as such, the State should clearly explain the process it undertook in determining which characteristics should be excluded. The HHRG utilised the broad framework provided by the Directive in its draft legislation, and we believe that unless there are clear and justifiable reasons to depart from the characteristics named, the full list should be included in the Bill.

When we turn to examine those characteristics which the state has sought to include, a number of problematic issues arise. We will explore these issues, and then suggest an alternative list of protected characteristics.

Traveller/Roma Communities

Members of the Traveller and Roma community are excluded from explicit protection in the Heads of the Bill. These communities are not covered by either the ‘race’ or ‘ethnicity’ ground, the latter due to the refusal of the Irish State to recognise the Traveller community as an ethnic group. Given the long history of marginalisation of the Traveller community in Ireland, and the problematic nature of the relationship between the Traveller community and the criminal justice system more generally (see Haynes et al 2015) we would strongly recommend the explicit naming of both the Traveller and Roma communities in the Bill.

Recommendation: Include Membership of the Traveller and Roma Communities in the list of protected characteristics

‘Race’

We generally problematise the term ‘race’ as a social construct though with this reservation accept its utility in legislation of this nature. However, it can be interpreted very narrowly. See, for example, the case of R v White (2001) where the court was asked whether the use of the term ‘stupid African bitch’ involved an ‘imputation of membership of a ‘racial group’ for the purposes of the racially aggravated provision in section 31 of the Crime and Disorder Act 1998. In answering the question, the court stated:

… the court is not tied to the precise definition in any dictionary. The statutory language is intended to be given a broad, non-technical, meaning … In our judgment, the word ‘African’ does describe a ‘racial group’ defined by reference to race. In ordinary speech, the word ‘African’ denotes a limited group of people regarded as of common stock and regarded as one of the major divisions of humankind having in common distinct physical features. It denotes a person characteristic of the blacks of Africa, to adopt a part of the definition in the dictionary. (2001, p.1357)[1]

In the context of a criminal statute, it is unlikely that this approach would be adopted in Ireland, given the strict constitutional requirements in relation to precision and certainty in penal statutes. Whilst the Directive does not of course create penal sanctions and thus is arguably not bound by these constitutional considerations, nonetheless, we would argue that a broader range of characteristics be included in Head 6 in this regard. We would suggest that in addition to ‘race’ and ethnicity, the list of protected characteristics be extended to include: ‘race, colour, nationality, ethnic or national origin, language and residence status.’ Certainly in the course of our research we have encountered cases of individuals who were targeted because they were perceived to be asylum seekers or refugees. Further we have encountered cases of persons targeted because of their Eastern European origin who were informed by public servants that they could not be victims of racism because they were white.

Recommendation: As well as ‘race’, the legislation should explicitly name ‘colour, nationality, ethnic or national origin, language and residence status.

‘Religion’

It is of course important to include ‘religion’ as a characteristic, particularly given the global phenomenon of Islamophobia (Zempi 2016; Carr and Haynes 2013). However, we would recommend the adoption of a broader categorisation in this regard, to include ‘religion or belief including the absence of any such religion or belief’.

Recommendation: Religion be expanded to include belief, as well as the absence of any such religion or belief.

‘Physical or mental health issues, ability to communicate’

The phrase ‘physical or mental health issues’ is to be in one sense commended, given its broad scope and the non-medicalised language utilised. However, in its current format, the section does not provide that Gardaí should have regard to the particular needs of people with disabilities. This is particularly relevant given its connection and relationship with the provisions and protections being made available under Head 16. We would strongly recommend that the term disability be used, and that individuals with intellectual/developmental disabilities be explicitly named. We refer again to the case, discussed in Out of the Shadows, of a person with a diagnosed developmental disorder whose family report being informed by specialist members of AGS that the victim did not meet the Courts definition of a person with a disability.