Introduction
In 2024, Ireland introduced hate crime legislation for the first time through the Criminal Justice (Hate Offences) Act 2024 (the 2024 Act). The Act follows the legislative structure of hate crime legislation in England and Wales (Crime and Disorder Act 1998) by introducing both new ‘standalone equivalents’ of existing offences (sections 4–6) and aggravated sentencing provisions (section 8). The 2024 Act also utilises the same legislative test for determining the hate element of an offence as applies across the United Kingdom, that is, a bifurcated version of the ‘animus model’:Footnote 1 under one limb of this test in the Irish Act, the offender is guilty if it is found that they were ‘motivated’ by hatred; under the second, the offender is guilty if it is found that they ‘demonstrated’ hatred during the course of the offence.Footnote 2
In introducing the 2024 Act, the Government recognised that it was a serious and stigmatic offence.Footnote 3 All Acts of the Oireachtas (post-1937) and signed into law by the President carry the presumption of constitutionality, but are also subject to judicial scrutiny for constitutional compliance. Where the legislation cannot be ‘saved’ by the court through the mechanics of interpretation, the offending part of the Act is declared unconstitutional, and the section in question is void. This paper will explore the construction and potential interpretation (though not the meritsFootnote 4) of the ‘demonstration test’ in Irish law. We ask if the provision purports to hold offenders strictly liable and consider how Irish courts might respond if so. Though jurisdictions in the UK and Ireland all regard Sweet v Parsley Footnote 5 as authority regarding strict liability, Irish courts consider this through the lens of the Constitution, which has associated implications for the statutory provision in question.Footnote 6
1. Strict liability in Ireland
Generally speaking, there is no absolute requirement for a mens rea to be included in criminal statutes, and in Ireland there is no constitutional imperative for same. Though offences of absolutely liability are probably not constitutionally permissible,Footnote 7 a range of strict liability offences exist and have been given explicit constitutional approval by the courts,Footnote 8 primarily in matters of economic or social regulation.Footnote 9 Lord Reid classically opined in Sweet v Parsley that parliament does not seek to criminalise the morally blameless, a position with which the Irish courts generally concur.Footnote 10 In Reilly v Judge Patwell,Footnote 11 McCarthy J set out eight relevant factors for assessing whether an offence is suitable for strict liability; in CW v Minister for Justice the Supreme Court acknowledged that the level of scrutiny required with respect to the mens rea element is not applied uniformly across all offences:
… the more serious the offence, or the more clearly an issue can be said to be an element of the offence, or to be central to the question of liability, the greater the level of scrutiny.Footnote 12
In Galvin, Edwards J noted that the court will consider whether the section is ‘capable of constitutional operation’ by reference, for example, to a due diligence defence.Footnote 13 Where a statute is silent as to mens rea, a court may read one into the statute in apposite situations,Footnote 14 as not to do so may have constitutional implications. Prior to examining the 2024 Act, we move to consider British legislation through the lens of the mens rea requirement.
2. The ‘demonstration test’ in Britain
There is no explicit requirement for mens rea in the demonstration test as set out in section 28 of the Crime and Disorder Act 1998 which applies in England and Wales. The High Court stated that the section ‘… is designed to extend to cases which may have a racially neutral gravamen but in the course of which there is demonstrated towards the victim hostility based on the victim’s membership of a racial group’.Footnote 15
In DPP v McFarlane Footnote 16 the respondent was initially acquitted of racially aggravated threatening behaviour, as the trial court found that the language used demonstrated hostility towards the victim’s conduct – that is, parking in a disabled bay – rather than their racialised identity. On appeal, Forbes J found that the court erred in this conclusion, and stated that the fact that the defendant used the words – no matter what the reason – was sufficient for the purposes of the section. Similarly, in RG and LT v DPP,Footnote 17 the Court noted that while the motivation test is concerned with ‘the defendant’s state of mind’, the demonstration limb ‘is not so much to indicate the offender’s state of mind as to prove what he did or said so as to demonstrate racial hostility towards the victim …’Footnote 18 In R v Rogers, Baroness Hale notes the demonstration test is concerned with ‘the outward manifestation of racial or religious hostility’.Footnote 19 As Walters states, ‘[w]hy the offence was committed does not matter in law under such a test’.Footnote 20
In practice, as Walters et al demonstrate, the courts will look to the intention of the offender where, for example, it is ambiguous as to whether a particular term is prejudiced or not; or where the term is prejudiced and used during the course of an offence, but the ‘purpose for using it may not be to demonstrate hostility’.Footnote 21 Juries, they found, were particularly reluctant to convict defendants of aggravated offences because of the definition of ‘demonstrating hostility’, as, it was perceived, to do so would be to label the defendant as racist for something they said ‘in the heat of the moment’.Footnote 22 With respect to the question of intentionality of language, though the UK Supreme Court has not considered the application of Sweet v Parsley to hate crime legislation, there are three cases we believe are relevant to the issue.
The first, DPP v Collins,Footnote 23 concerned section 127(1)(a) of the Communications Act 2003. Lord Bingham, citing Sweet v Parsley, was of the view that to convict under the section there must be an intentionality to the language used, as ‘Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates’.Footnote 24 He stated that the mens rea will be established, ‘where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender’.Footnote 25 Similarly, in the second case we highlight, the Court in Connolly v DPP assessed the mens rea required under section 1 of the Malicious Communications Act 1988 and determined that sending grossly offensive articles was insufficient to attract liability: they must be sent with the requisite mens rea, namely, with a purpose to cause distress or anxiety.Footnote 26 While the ‘nature of the communication may shed light on the defendant’s mens rea’,Footnote 27 this alone was considered inadequate to satisfy section 1.
The third, King v Procurator Fiscal, Dunoon is a decision of the Scottish High Court.Footnote 28 Here, the question was whether the offence of racially aggravated harassment created through section 50A(1)(b) and (5) of the Criminal Law (Consolidation) (Scotland) Act 1995 was a strict liability offence. The Appeal Court disagreed that the question was whether the offence was one of strict liability, but rather ‘what the mens rea requirement was for conviction’.Footnote 29 The Court distinguished the facts of the case from those in Sweet v Parsley and CC v Ireland,Footnote 30 noting that in this case the language used by the complainer may indicate ‘evil intent, specifically the malicious expression of ill-will’.Footnote 31 However, in suspending her conviction, the Court went on:
The question of conviction arises because the remark is made deliberately with malice and ill-will. That alone imposes a higher test for mens rea than, for example, knowledge in the case of Sweet v Parsley, and belief in R v K … We consider that conviction on the basis of intent alone was envisaged …Footnote 32
Despite the absence of an explicit mens rea in both provisions, the courts found that there must be an intentionality to the language used, and established as connected to the racial group of the subject of the remarks. As there had been no such finding of a connection between the two by the Sheriff, the conviction was suspended. Distinguishing between Sweet v Parsley, CC v Ireland, and the present case, the Court stated:
[S]tanding the landlord’s knowledge and the man’s belief, there is nothing in the behaviour that could be considered reprehensible, whereas in the [present case], even where there is a belief that the remark will not be heard by the subject, there may remain significant elements of the behaviour indicative of evil intent, specifically the malicious expression of ill-will.Footnote 33
Where, as in the 2024 Act, a defendant demonstrates hatred against a member of a protected group, the question must be asked as to how ‘evil intent’ can be established, a question to which we now turn.
3. The 2024 Act: mens rea and the demonstration test
When the Crime and Disorder Act 1998 was first introduced in England and Wales, there were high levels of not guilty pleas, with defendants ‘vehemently’ rejecting the label of racist.Footnote 34 The same will likely happen in Ireland, and potentially specifically where the prosecution seeks to rely on the demonstration limb of standalone equivalent offences. Here, we believe that defendants will argue that, even if they did demonstrate hatred, they did not intend to do so.Footnote 35 Rather, they might argue that, as Burney and Rose describe it, they ‘uttered words which were part of their natural vocabulary’,Footnote 36 or as Walters et al put it, did not ‘actually understand their actions to be racially or religiously hostile’.Footnote 37 The utility of this argument, we believe, turns on whether the prosecution is required to establish that the defendant intended to demonstrate hatred. The question thus is, what – if any – is the apposite and requisite mens rea for the actus reus of demonstrating hatred, particularly where the demonstration of hate falls into the categories outlined by Burney and Rose, and Walters, above?
The questions we must ask are as follows: (1) whether the offences are strict liability offences; (2) whether they are true criminal offences or ones which are regulatory in nature;Footnote 38 and (3) if they are truly criminal offences, whether the presumption in favour of mens rea has been displaced.Footnote 39 The legislation provides that an offence is aggravated by hatred where, ‘at the time of committing the offence, or immediately before or after doing so, the person demonstrates hatred towards the victim’ where that hatred is ‘on account of the victim’s membership or presumed membership of a group…’ There is no explicit mens rea here. This is not a case, as the Court stated in CC v Ireland, that the requirement for mens rea was ‘simply qualified or limited’: rather, we argue, it has been ‘wholly abrogated’.Footnote 40 There is, to use the language of the Court in CW v Minister for Justice, ‘no way out’ of a conviction, a position which is not constitutionally tenable.Footnote 41
It could be argued that speech is always intentional, thus abrogating the need for an explicit mens rea, but this is not a position universally adopted by lawyers.Footnote 42 Indeed, there are a range of analogous ‘speech’ provisions in Irish law which satisfy the requirement for mens rea: the Prohibition of Incitement to Hatred Act requires that speech must be ‘intended … or likely to stir up hatred’; section 4(1)(a)(ii) of the Harassment, Harmful Communications and Related Offences Act 2020 requires the communication be made ‘with intent by so … sending to cause harm’.
If we accept that the offence is one of strict liability, we then must ask whether it can be one of strict liability, or whether this is a regulatory offence. It would be anachronistic to suggest that the offence is one which is seen as protecting public morals and promoting the common good, thus a ‘proper object[] of strict liability’.Footnote 43 Rather, by increasing the maximum penalty that can be imposed following conviction, the legislature is establishing the serious nature of the offence. The label imposed on conviction – eg ‘assault aggravated by hatred’, which will remain on the criminal record of the offender – is deeply stigmatic: hate crime legislation, ‘marks the abhorrence and stigma’ attached by parliament to offences committed in this context.Footnote 44 Research has found that the ‘hate crime’ is highly stigmatic: the designation of an individual as a ‘hate criminal’ generates a statistically significant increase in negative public perception compared to convictions for comparable base offences.Footnote 45 Thus, we assert, the new standalone offences are ‘serious crimes’,Footnote 46 highly stigmatic, and ‘truly criminal’ in nature.
Finally, where legislation is silent on mens rea, it may be displaced by, for example, a reverse burden of proof,Footnote 47 a defence of honest mistaken belief with respect to sexual offences,Footnote 48 or due diligence. Alternatively, the legislation can include defences, where it must be established that the offence is committed ‘without lawful excuse’, or ‘without lawful authority’. There is no such explicit displacement in the 2024 Act.
A court tasked with reviewing or interpreting these new offences will apply a high level of judicial scrutiny.Footnote 49 The presumption of constitutionality will of course apply, and so it is possible that a court will interpret the section as requiring a mens rea:
Silence in that matter will be interpreted to mean that mens rea is required, rather than excluded (which would still leave the difficult question as to what exactly was required by mens rea and whether intention, recklessness, or in some cases, carelessness, will suffice).Footnote 50
As to what mens rea is required, we believe that the correspondence principle might be a useful interpretive tool.Footnote 51 The Council of Europe, referring to Nachova v Bulgaria,Footnote 52 observes that there must be a ‘causative connection, “causal link”, or proximity between the hate element and the commission of the offence’.Footnote 53 This connection, we believe, could be made through the correspondence principle, by requiring that the mens rea of the standalone equivalent correspond to the mens rea of the base offence.Footnote 54 The aggravated offence builds upon the base offence and the omission of a specific mens rea may be viewed as an indication that the Oireachtas intended such a result.Footnote 55 For example, section 18 of the Criminal Justice (Public Order) Act 1994 incorporates a mens rea of intention; thus, applying the correspondence principle, that standard also applies to the aggravated version under section 18A as inserted by section 6 of the 2024 Act. Similarly, the standard of recklessness would apply to section 6A of the Criminal Justice (Public Order) Act 1994 as inserted by the 2024 Act.
Conclusion
Given the recent emphasis in case law in Ireland on the requirement for mens rea for truly criminal offences, we believe it inevitable that the question of the absence of an explicit mens rea with respect to the demonstration test in the 2024 Act will be raised in an Irish court. Ideally, this lacuna would be addressed pre-emptively by the legislature through an amendment which explicitly inserts a mens rea requirement into the Act, by mapping the 2024 Act onto existing legislation in which speech is the criminalised conduct, by reference to both the 1989 and 2020 Acts and the requirement that the defendant ‘intentionally demonstrated hatred’. It could be argued that the standard of ‘intentionally demonstrates hatred’ is high, but it is certainly possible that such intention could be inferred through the actions and words of the defendant,Footnote 56 thus ensuring that the provision is not ‘emasculated’. If such an amendment is not made and the issue is one for the Courts to determine, it is suggested that the correspondence principle provides a neat solution to constitutionally ‘save’ the legislation. Where there is a question as to whether hatred was in fact demonstrated, a requirement of intentionality or recklessness allows for the safer prosecution of offences.
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