Racially Aggravated Crime – The Irish Experience

Donncha O’Connell

Lecturer in Law

Faculty of Law

NUI, Galway

Conference on Combating Racism and Promoting Equality through Legislation

Dublin, 27 March 2004

Organisers:

Irish Human Rights Commission

Amnesty International (Irish Section)

National Consultative Committee on Racism and Interculturalism

Chairman, ladies and gentlemen …..

I am very grateful to the Irish Human Rights Commission, Amnesty International and NCCRI for the invitation to speak at this timely conference on racism. All three organisations are to be commended for organising such an event.

From the very moment of its establishment, the Irish Human Rights Commission has attached a high priority (on an all-island basis) to the issue of racism as a violation of human rights. In this connection it has worked closely with the Northern Ireland Human Rights Commission. It is vital that this work is not hindered by the regrettable difficulties being experienced by the NIHRC. Above all else, these institutions exist for the protection and promotion of human rights. This is a transcendent imperative that must not be compromised by other distractions.

While the work of bodies like the Human Rights Commission, NCCRI and Amnesty International is crucial we should not lose sight of the vital contribution made by entities such as the Equality Authority and the Know Racism campaign. Equally, the struggle against a particularly Irish form of racism, sustained by groups like the Irish Traveller Movement and Pavee Point, must not go unacknowledged or, indeed, unsupported as an issue of enduring discrimination in Ireland.

The point which I wish to make today is quite straightforward: in the context of racially aggravated crime, legislative measures alone are insufficient and potentially futile. In some cases they may even be counter-productive.

I am not arguing against any legislative measures to deal specifically with the phenomenon of racially aggravated crime (or, indeed, hate crimes in general) but I am proposing a cautionary and perhaps sceptical approach in light of previous experience in this and other jurisdictions. What is required is an integrated approach to developing an anti-racism strategy that, of course, takes account of peculiarities of the Irish situation without starting from a defensive posture that relies on an insistence that we are not as racist as other countries or that we are only racist when faced with racial diversity of the ‘umanageable’ kind, usually represented by immigrants and refugees.

Every society contains within it – with varying degrees of success – forms of intolerance such as racism. We are not uniquely different in this country. The fact that this problem is being acknowledged later in Ireland than has been the case in other countries indicates an opportunity to learn from the dreadful mistakes made elsewhere.

When it comes to issues like racially aggravated crime we should not replicate those mistakes, by grafting on to potentially discriminatory policing and judicial systems, and prosecutorial mechanisms lacking in transparency and accountability, laws that increase the probability of racial discrimination although intended to combat that problem. Something subtler is required.

The starting point in any assessment of the need for legislation for racially aggravated crime should be an honest assessment of the current deficits in the ordinary criminal law as a means of dealing with crimes motivated by racial hatred. At the same time, we should not close our minds to the possibilities of recourse to the civil law in relation to offences that might not – for evidential and other reasons – be amenable to successful criminal prosecution. In this regard, the rich potential of the Equal Status Act, 2000 for dealing with issues that might otherwise be prosecuted under the Prohibition on Incitement to Hatred Act, 1989 should be borne in mind.

The discretionary nature of sentencing for crime and of remedies in civil law affords a good deal of flexible opportunity when it comes to addressing the racially motivated component of crimes and civil wrongs. While some express concerns about the exercise of such judicial discretion, especially in the criminal sphere, it has to be acknowledged that a degree of rationality is being given to that process by the articulation of sentencing guidelines by the Court of Criminal Appeal. Obviously, there could be more transparency in sentencing practices and policies and there will certainly be a need for enhanced data and data analysis on sentencing if we are to accurately measure how racist motivations are reflected in actual sentences.

Equally, we should not under-estimate how much can be achieved by encouraging the judiciary, at all jurisdictional levels, to participate in programmes of training in all areas of discrimination including racism. A mechanism already exists for doing this – the Judicial Studies Institute – although it would be preferable if this operated in a more transparent and public manner. But, of course, the judiciary – as an organ of state whose independence is constitutionally protected – do not like being told what to do when it comes to exercising discretion. More recently, in defence of such discretion they have (through the pronouncements of the Chief Justice) demonstrated a healthy scepticism about the advantages of mandatory sentencing. For what it’s worth, I share that concern and believe that the discretionary component of sentencing must be preserved so long as the superior courts give appropriate guidance as to consistency, proportionality and fairness.

There is no insuperable obstacle to addressing racially motivated crimes as a sentencing matter – whether through additional tariffs or the withholding of suspended sentences – through the exercise of sensible and just judicial discretion. We cannot take the proper exercise of such discretion for granted without assisting the judiciary in developing reasonable and rational sentencing principles for racially aggravated crimes. In certain situations, the DPP could play an important role in prompting the judiciary to develop such principles by appealing against sentences where there has been a failure to reflect the racially aggravated aspect of a crime in the sentence given by a trial judge.

In the event that the exercise of judicial discretion does not yield desirable results for the victims of racially aggravated crime ordinary legislative provision for specific offences could be amended to provide that courts shall, in sentencing, consider racial and other motivations as an aggravating factor. This is not the same thing as legislating for mandatory sentences.

In other jurisdictions, where racially aggravated crimes have been defined in law, the result has not always been an unqualified success for racial minorities and their advocates. For example, in the UK discriminatory policing practices have led to the use of such legislation against the very minorities it was intended to protect. On the other hand, there has been strong anecdotal evidence to the effect that complaints made by racial minorities under such legislation are not always treated with the same seriousness and expedition as complaints made by members of the majority community. A lack of transparency in the exercise of prosecutorial discretion also contributes to the impression that inherent discrimination or, indeed, racism in the criminal justice system does not end with the enactment of legislation to specify racially aggravated crimes.

At a more practical level, there can be increased difficulties in successfully prosecuting such crimes because of the additional mens rea for the racially aggravated aspect of the crime and the real problems associated with proving that beyond reasonable doubt.

The argument might well be made that Ireland is less likely to experience the same levels of institutional racism in policing as in the UK. This is a dangerously smug assumption especially when one considers the experience of members of the Traveller Community or, indeed, when one considers the rather confusing signals sent out to racial minorities every time the Garda National Immigration Bureau embarks on one of its operations like the ridiculously-named “Operation Hyphen” of 2002.

An opportunity to deal with some of the foregoing concerns arises in the context of the recently published Garda Siochana Bill, 2004. It is to be commended that the Government took on board some of the concerns expressed by the Irish Human Rights Commission and organisations like ICCL on the Heads of Bill published last year. While the Government may view this as “a lot done”, I would suggest that it has “more to do”!

The proposal, in Chapter 4 of the Garda Siochana Bill, 2004, for a greater connection between local government and local policing through Joint Policing Committees, although broadly welcomed, could lead to very uneven and potentially discriminatory policing practices from area to area depending on how such liaison develops. A much more imaginative model of ‘localising’ police governance through the direct involvement of civil society groups (not necessarily ‘mediated’ by locally elected political representatives) might be worth considering when this legislation comes to be debated in more detail.

It is crucial that the important work done by the Garda Racial and Inter-cultural Unit continues to be supported as a mainstream activity of the policing service. Consideration should also be given to programmes of affirmative action in the area of recruitment to An Garda Siochana to ensure appropriate representation of minorities working in the police service. We could learn a lot from current practices in the PSNI in this regard.

Concluding remarks

What victims of racially aggravated crime want most is to have an acknowledgment that racism has, in some way, motivated the crime committed against them. This can be reflected in the charge made against the perpetrator of such crimes but it can also, perhaps more easily and effectively, be reflected in the sentence.

In summary, if I were to make some tentative proposals they would be as follows:

  • Sentencing discretion must be finessed – whether by the judges themselves or by the legislature – to take adequate account of racially aggravating factors in crime;
  • There needs to be a more ambitious and imaginative use of the civil laws in the areas of equality and harassment especially in areas where recourse to the criminal law is not practical or desirable;
  • Policing and prosecution practices require radical assessment with a view to heightening awareness and maximising sensitivity about racism as a factor in criminal behaviour and a threat to the institutional operations of the criminal justice system;
  • Within minority communities there is a need for confidence-building in policing and criminal justice mechanisms so that the potentialities of the system can be tested by real victims of racially aggravated crimes. This experience must be measured in a manner which is credible and reliable and there should not be an over-reliance on the testimony of policing service providers. The first-hand experience of racial minorities is invaluable and, without it, any proposals for reform in this area will be no more than the second-guessed fond hopes of well-intentioned reformers.

Thank you.

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