Official Report: Minutes of Evidence

The Chairperson (Mr Frew): I inform the Committee that the witnesses who are providing evidence today are Alyson Kilpatrick, Chief Commissioner; Dr Claire McCann, senior policy and research officer; and Emma Osborne, policy and research officer, all from the Northern Ireland Human Rights Commission. You are very welcome to the Justice Committee. Thank you for attending the meeting. I invite you to make the opening statement, Alyson.

Ms Alyson Kilpatrick (Northern Ireland Human Rights Commission): Thank you very much. It is our pleasure to be here. Thank you for the opportunity.

As the Committee will have seen, we welcome the Bill, which has been a long-standing recommendation of the commission. We focused our response on Part 6, pertaining to the statutory hostility aggravator, which in our view was where we could be most helpful. We note the decision not to introduce a statutory definition of "hate crime" or "hostility" and remind the Committee that states have an obligation to ensure that individuals and groups are protected from harm. To have a statutory definition for both would provide greater certainty for victims and perpetrators. It would be more easily and reliably enforced, and it would enable better data collection. We are of the view that, for reasons of transparency and effectiveness, the definition should be contained in legislation, not left to guidance or secondary legislation, although the latter is preferable over guidance.

The commission notes that there is a narrow list of protected characteristics: race, religious belief, disability and sexual orientation. Excluded, for example, are sex and gender identity. Evidence identifies that attacks motivated by hostility towards people based on their sex and gender identity are on the increase. We urge the Committee to explore amendments to the Bill that include those grounds. We also note the absence of hostility motivated by sectarianism. Under the sentence enhancement for hostility, sectarianism was occasionally dealt with under a combination of the existing grounds of racial and/or religiously motivated hostility, so we have recommended that the Committee satisfy itself that it will be the same approach under this legislation in the absence of a statutory aggravator for sectarianism.

Our response also raises concerns regarding the absence of a "by reason of" threshold for the new offence. In the course of our own investigation into racially motivated hate crime, concerns were raised about the effectiveness of the thresholds of "demonstration of hostility" and "motivated by hostility". It is our view that the "by reason of" threshold better reflects the harm done to victims and their communities who are targeted by reason of their immutable characteristics or identity. We also note the use of the "by reason of" vulnerability based on, for example, age at clause 36 of the Bill. We fear that it might create a discrepancy in treatment between victims at clauses 33 and 36.

We take the opportunity to highlight the importance of the collection and regular assimilation of robust, disaggregated data on the new offence to ensure effective monitoring. We also recognise that the PSNI produces robust data on hate crime already. However, we are keen to see that the new offence is effectively measured at all stages of the criminal justice system to better help the PSNI and everyone else in the criminal justice system and to show victims that such offences are taken seriously. I will leave it there. Thank you.

The Chairperson (Mr Frew): Thank you very much for that succinct presentation, Alyson. It is always helpful when people can be so succinct and timely. Thank you.

In the Bill, as laid out in clause 33, the Department has put in the four areas:

That leads on to clause 33(2), which is:

In your view, what is the difference between sexual orientation and sex?

Ms Kilpatrick: "Sex" is the sex of the person, male or female. "Sexual orientation" is their orientation. In other words, same-sex couples would be included — or, in fact, heterosexual couples, if they were targeted by a same-sex couple.

The Chairperson (Mr Frew): Right, OK. So you see there being a big difference between sex and sexual orientation as identifiers?

Ms Kilpatrick: Yes.

The Chairperson (Mr Frew): Is gender identity different from sexual orientation?

Ms Kilpatrick: It is. Gender identity is how the person identifies themselves. We have not gone so far as to say "self-identification"; we stick to "gender identity", which is used in article 14 of the European Convention on Human Rights (ECHR), "Prohibition of discrimination".

The Chairperson (Mr Frew): OK. You mentioned using age as a vulnerability in clause 36 and how that could cause offence or violence to clause 33. Can you elaborate that for me? I did not quite catch it all.

Ms Kilpatrick: I am sorry; if that is the way that that sounded, that is not what I meant.

The Chairperson (Mr Frew): I am sorry —.

Ms Kilpatrick: No, no; I should have explained that more clearly. We say that "by reason of" should be included in clause 33. It is included in clause 36. There is a good reason for including it in clause 36 for age, and the same reasoning could apply to clause 33. Just to be absolutely clear, there are differences of opinion about whether or not a vulnerable minority should be protected differently or should have a different form of enforcement. We think that "by reason of" applied to both. It is not that we think that one is better protected than another; it is just that we think that the same threshold should be applied for both. It should not take away from either.

The Chairperson (Mr Frew): So it is about vulnerabilities, but is age mentioned in clause 36? Forgive me for not having read it lately.

Ms Kilpatrick: Yes.

The Chairperson (Mr Frew): Or do you translate vulnerability as age?

Ms Kilpatrick: No, age is specifically mentioned. Maybe this is a better way of putting it: if somebody is targeted because they are vulnerable, it can simply be because it is easier to commit a crime against that person. That could be an older person or a very young person. Clause 33 is about targeting somebody because of a hostility towards them and their immutable characteristics — their personal identity or the colour of their skin, for example.

The Chairperson (Mr Frew): Clause 33 is "Aggravation by hostility", which is basically aggravation by hate of a certain person because of their certain —.

Ms Kilpatrick: Exactly.

The Chairperson (Mr Frew): And clause 36 is "Aggravation by reason of vulnerability", where someone has been attacked simply because it was easier to do so.

Ms Kilpatrick: There is a debate about which falls into which category. The PSNI may have a view about how easy this may be for it to enforce. Ultimately, that is going to be one of the tests. Whether or not somebody is targeted simply because there is greater opportunity or because they are vulnerable due to old age — the jury is out as to whether one is a hate crime and the other is simply a vulnerability. It works both ways.

The Chairperson (Mr Frew): Clause 36(1) reads:

How important is "by reason of"? Why do you think it has been left out of clause 33?

Ms Kilpatrick: There are different views on that. Some victims' groups, such as Victim Support NI, argue that vulnerability should be separate and that "by reason of" should not be included in relation to the hate crime category. I cannot say, one way or the other, that one is better than the other on strict, objective human rights standards. There is a lot of evidence that suggests that "by reason of" provides a much broader and more inclusive threshold that better represents how victims feel when they are targeted.

Do you want to add anything, Emma? Emma has done a lot of the detailed work on this topic, just in case I have made a hames of what she intended to say.

Ms Emma Osborne (Northern Ireland Human Rights Commission): I just re-emphasise that there is no human rights standard that says that "by reason of" should be included in hate crime legislation. Representing different views, again, the commission carried out research into racist hate crime in 2013. What came through from that about the existing grounds, which are "motivation by" and "demonstration of" hostility, was that "demonstration of" was not used as much as "motivated by" and that the evidence to prove "motivated by" was more difficult to achieve, so, in a lot of cases, the sentence enhancement fell off. The commission was of the view that, if the existing thresholds did not work correctly or as best they could, introducing the "by reason of" threshold to identify, potentially, not where there has been hostility but where there has been prejudice, might be effective.

The Chairperson (Mr Frew): Right. OK. If you were to add in that the offence was aggravated "by reason of", what you would basically —. The wording in clause 33 is:

Are we talking about replacing "aggravated by" with "aggravated by reason of"?

Ms Kilpatrick: It is about proving that it is, in essence, a hate crime within those thresholds. To start with, a crime has to be committed. You then have to prove that there has been an aggravating feature. At the minute, those are "motivated by" or "demonstration of" hostility. We are saying that a third one would be "by reason of", and that would cover all instances of a hate crime or an aggravating feature being attached to a signal crime. I understand that the PSNI thinks that that would be easier to prove. That is not necessarily the decisive factor.

The Chairperson (Mr Frew): So, to clause 33(1):

you are adding "reason of"?

Ms Kilpatrick: Yes.

The Chairperson (Mr Frew): So you are basically adding "by reason of" at the end of 33(1).

Ms Osborne: May I qualify that?

The Chairperson (Mr Frew): Sure.

Ms Osborne: Our recommendation is not that that should be added but that the Committee should satisfy itself that the effectiveness of the legislation is not lessened by its not being there.

The Chairperson (Mr Frew): Sure. OK. I have got that.

You also talk about putting a comprehensive definition into clause 33(4). Explain again why you think that we need a comprehensive definition of "hate crime", especially given that the Minister has gone down the road of "aggravation" for such crime.

Ms Kilpatrick: When people talk about hate crime, they have in mind a stand-alone offence called "hate crime" that can be prosecuted: that is not the case. We think that the aggravator model that has been adopted is perfectly good. However, "hate crime" and "hostility" are not defined. If you are going to prosecute somebody for aggravation whereby something is motivated by hostility, but there is no definition of "hostility", that does not help the police, the victim or the perpetrator. A principle running through all human rights law is that law has to be predictable. You have to know what you should not do before you are prosecuted for an offence if you do it. It is partly about certainty. The Bill provides, I think, that definitions may or will be provided for by way of regulations or guidance. We say that it is always better for that to be clear in the enabling legislation, particularly if a criminal offence is being created. That makes it easier for victims to understand where a case may be treated as an aggravating factor. It also helps judges, because they have told us in passing that the aggravating feature is sometimes dropped because it is too difficult to prove. Rather than it dropping off, let us have a definition that says exactly what has to be established if you are going to prove it.

Mr McGlone: Thank you for your presentation. It is, unfortunately, in light of events this week, very topical that we are discussing this today. We saw 27 people, including a two-month-old child, driven from their homes, and we heard on the news this morning that a nurse had been pursued by four masked men because of the colour of her skin. I am sure that we all — myself especially — want to make sure that there are no loopholes in the law when it comes to the sentencing of the individuals responsible for those racist crimes. Can you explain to me what "by reason of" adds and how it makes sure that the offence is solidified and made very clear in law when it comes to people who are responsible for any of those offences, whatever the prejudice, hostility or bias might be? What does "by reason of" add to that?

Ms Kilpatrick: I will let Emma go first, then I will deal with the more general question.

Ms Osborne: Again, I go back to what we have said about that. It is added as a third threshold. It does not become the only threshold. The "demonstration of" and "motivated by" thresholds continue to exist, but "by reason of" refers to someone being targeted by reason of their skin colour or race.

Ms Kilpatrick: Maybe I can explain it in this way. This is why I said that there are different views. It has to be clear to protect everybody and for the police to prosecute it. "Motivated by" hostility is quite difficult to prove. You have to prove that the crime was motivated by hostility. There are different elements to that crime. The "demonstration of" hostility is, essentially, another way of proving that a crime was motivated by hostility, but it is when somebody, for example, uses a racial slur before, during or after committing a crime and makes it obvious and demonstrates that that is why they targeted that person.

"By reason of" allows for more flexibility and allows more of the surrounding circumstances to be taken into account. There may be a situation where it is very difficult to prove motivation or that anything was said demonstrably during or after the commission of the crime, but it is blindingly obvious, if I may use that expression, to everyone. It catches those instances, but it should still be tight enough that it is not too subjective. A person standing by or a police officer has to know what they are dealing with. Does that —?

Mr McGlone: Sorry, did you want to come in?

Ms Kilpatrick: I have a feeling that Emma is going to say that I have got that wrong.

Ms Osborne: Not at all. As Alyson said, there are counter-views on it. That is not the only view. We have not specifically recommended that it should be included, because there is no standard in human rights law to which we can point and say that it should. There are contrasting views, and that is just one of them.

Mr McGlone: To get it clear in my mind, you are not introducing it based on a view. Presumably, it is based on legal advice.

Ms Kilpatrick: Yes. It is the view that we have reached, having weighed up all the legal advice and case law. On balance, we are of the view that it would add to it. However, we think that the law as it is could be better enforced if there was a little more courage, as in being prepared to run cases in front of judges rather than perhaps taking an easy route out.

Ms Sheerin: Thanks to you all for your presentation and the written submission that you provided. I want to ask a question about not including misogyny. I recognise that your submission, which I have in front of me, refers to a "gender-sensitive approach". You acknowledge that the experiences of women and men are different and that we have to acknowledge those different experiences and gender-based abuse. Given the context in the North and the fact that most gender-based violence is as a result of misogyny, why have you not included that as a stand-alone aggravator?

Ms Kilpatrick: We think that it is sufficiently covered on the grounds of sex, given that, first, the commission of the crime has to be proved.

Ms Osborne: Again, it comes down to the fact that human rights law does not require a misogyny aggravator. However, it requires that we not allow discrimination on the basis of sex. That is the more solid recommendation from us. There is nothing to stop you from going further than the human rights standards. Human rights standards provide a floor of protection. Nothing would prevent you from going further than that if you felt that a misogyny aggravator would provide a better level of protection. We have focused on the protected characteristic rather than the motivation.

Ms Kilpatrick: The other point to mention is that this is also something on which there are different views amongst the experts who really understand violence against women and girls. Sometimes, having a crime prosecuted as misogyny as opposed to one that is aggravated can confuse matters and end up meaning that there is no prosecution for the basic offence, which is the assault. When I say "basic", I mean the underlying offence. It can unduly complicate things when, in fact, it could be an aggravator if the attack was because the person was a woman. It is different from many of the violent offences against women and girls, when it can be difficult to prove that the crime was motivated simply by their sex. It seems pedantic. One of the reasons why we have not said what we think you must put in the Bill is that there is scope here for different views. Often, human rights, particularly in this area, allow for differing opinions, so long as the basics are covered. The basics are that people are protected and that this sort of hate crime is prevented and punished, but getting it right and understanding why the offence was committed in the first place. Women may argue that domestic violence, for example, is necessarily misogynistic, but to prosecute every domestic violence offence as misogyny, or having to prove that it was motivated by hatred of women, could be difficult. The nuances there can be difficult. Sometimes, adding too much can undermine the effectiveness of what is already there.

Ms Sheerin: I appreciate where you are coming from; I understand that. However, our position is that we feel that not including misogyny as an aggravator is a missed opportunity. I suppose that it goes back to the wider piece around the fact that we have an issue with femicide and domestic violence in the North, and it is integral to the education piece to draw a line between misogyny as the root cause of that.

Ms Kilpatrick: We would not want to dissuade anybody from pursuing that and putting it in the Bill, if they thought that it was appropriate. However, careful thought should be given to whether it could confuse and not achieve the objective.

Ms Sheerin: I understand what you are saying. I appreciate the point that you make. I will go back to the earlier line of questioning on "by reason of". I understand the motivation or rationale for including that, but will it be difficult to deliver in practice?

Ms Kilpatrick: It should be easier to prove, which is the practical application of this. If a criminal statute is almost impossible to enforce, and if it is almost impossible to get a successful prosecution because of it, it is not going to be very practical. That is where we think "by reason of" is an easier threshold. It is also a more inclusive threshold. It allows the police, for example, to introduce more evidence — sometimes circumstantial — than they can with just "motivated by" or "demonstration of". As with the previous point, this is not something on which we can direct you to one or the other. There are factors to balance, and that is what is set out in this advice. I would love to be able to say that it is cut and dried, but it is not. It is whatever is most suitable, is most easily enforced and achieves the basic fundamental purpose of protecting people who are vulnerable or, perhaps, targeted because of their identity or characteristics.

Mr Bradley: Thanks very much for your presentation. I found it very interesting and slightly confusing. You recommend adding sex and gender identity as protected characteristics. What evidence can you produce to show that the existing criminal law framework is failing to or will not protect people in those categories? Also, what practical gap would these amendments address that cannot already be dealt with through sentencing and prosecution decisions?

Ms Kilpatrick: You could say that about all the aggravating factors. Whether or not the criminal law deals with an attack on a person because of their gender identity is not really the issue. If a crime is perpetrated against a person because of their gender identity, that is a hate crime and should have an aggravating feature. That sits comfortably alongside all the other provisions such as the ECHR, which protects against discrimination on grounds of gender identity. We very much stuck to those factors. It is also present in lots of other laws. If you want to include protection for people who are targeted because they are transgender, then the aggravating factor should include that as separate from sex.

Mr Bradley: How do you propose that the Assembly balances stronger hate crime protections with fundamental rights to freedom of expression, religion and conscience, particularly when robust political or gender-related views may be expressed but are not intended to incite hatred or criminality?

Ms Kilpatrick: That would not apply at all. There has to be a crime; that is the first thing. If you are going to be prosecuted, the prosecution must prove that you have committed a crime. It must then prove that that crime was motivated by hostility or involved demonstration of hostility, and that has to be proved to the criminal standard in front of a judge. Only then would it be taken into account in the sentencing. It is not that you get a different sentence or have a different offence, although it is recorded that it is an aggravating feature. It is that a judge can impose a sentence that is at the higher end, taking into account something that makes the offending more severe. It is the sort of thing that judges do all the time.

One of the reasons why this is specific to categories of protected characteristics and aggravating features is that it was not being prosecuted. Also, judges were complaining that it was being lost in the course of a prosecution, so it was dropping off and we were not getting a clear picture of how often it was happening. If somebody is expressing their opinion and has not committed a crime, they have nothing to fear from this. The Human Rights Commission has always supported the right to free expression, assembly and political opinion, so expressing your political opinion is not going to be a crime in and of itself.

Mr Bradley: Just one last wee point. We have our own problems with sectarianism in this wee country of ours. How would you define "sectarianism" in legislation without creating an overlap or confusion within the existing religious and racial aggravators?

Ms Kilpatrick: Unhelpfully, we have not suggested a definition. We said that there should be a definition and that it should be found. It is quite difficult to find somewhere that has relied on a definition of sectarianism. The Scottish model is helpful. I am not saying that it is peculiar to Northern Ireland, but it is something that we tend to talk about in Northern Ireland more than in other parts. There have been various Council of Europe attempts at talking about sectarianism, and we have set out all of those. If advice was required on a definition that those responsible for legislation came up with, we could help to work through that. Unfortunately, I cannot give you a cut-and-dried definition of sectarianism. That is much better left to the legislators through democratic scrutiny.

Mr Bradley: I understand what you are saying, but there should be a definition. I am going for a walk this evening. It "should be" raining, it "could be" raining or it "will be" raining all mean the same thing: it is going to rain. I will leave it at that, Chair. Thank you.

Ms Kilpatrick: Perhaps there is a fear that it is going to further confuse. It is unlikely to make it more confusing. It is likely to make it clearer because, so far, something that is sectarian has been prosecuted as a race or religion aggravating offence.

The police record it separately as sectarian, so there are statistics for sectarian incidents or crimes. If we had a proper definition of "sectarianism", that would tie in much more neatly with the data that the police keep. It is difficult. We are not suggesting that it is simple, but it should definitely be considered. We leave it to you to work out the definition, but we can certainly help with that.

Mr Kingston: Thank you for your attendance and paper. You talked about wanting a definition of "hate crime" to be included in the Bill. I do not think that the words "hate crime" appear in the Bill. You said that hate crime is currently not defined as a crime in and of itself; it is an aggravation of another offence. Clause 36 states that "an allegation of aggravation" can be made, and that a person can be convicted of the offence without the aggravation having been proven. The Bill has avoided defining "hate crime" because, I presume, the Department does not want it to be seen as a new offence. In that context, will you clarify what you are calling for? Are you saying that hate crime should be a crime in and of itself, or do you accept that it is an aggravator of another offence?

Ms Kilpatrick: There are two approaches, both of which are valid. One is that hate crime should be a stand-alone offence. The other is that there should be an aggravated sentencing model. We are talking about something in between: it is better to explain why there is an aggravation in a model. There should be something for which all the elements are capable of being proved, which would go together to make it a hate crime. The police, and the court, could record it as a hate crime.

I hope that you do not think that we are trying to duck the issue, but, unhelpfully, we cannot point to something and say, "This is what it needs to be. There is a settled standard". The term "hate crime" is used so often that it is misunderstood. I think that a lot of people think that it is a stand-alone offence — that you can go to court and be prosecuted for hate crime — rather than there being component elements that, together, make up a crime that is aggravated by hate and is recorded that way by a court. It would not be quite as simple as just adding a clause that says, "This is a hate crime"; something such as a subheading in the Bill is needed to make it clear what "hate crime" is, and how you then prove the elements of a hate crime.

Mr Kingston: I will give that some thought. I am just thinking about how the police describe things. I think that they use the term "hate crime", or something being "motivated by hate".

Ms Kilpatrick: That is one of the reasons why we wish that we could come up with a clear answer for you, but we cannot. However, the police will separate —

Mr Kingston: They will say that something is being treated as a hate crime.

Ms Kilpatrick: They will, but the thing is that —

Mr Kingston: But that is not actually an offence.

Ms Kilpatrick: This is where it gets very confusing, and where the statistics can be very difficult to follow. A hate incident is recorded by the police as a hate incident. It is reported as a hate incident because the perception of the victim, a passer-by or the police officer is that it was motivated by hate or there was a demonstration of hate based on one of the protected characteristics. It will not be a hate crime unless and until there is a crime identified. If it is prosecuted as a hate crime, the police have to show not just that there was a crime but that it was motivated by, or there was a demonstration of, hostility. At that stage, they have to prove it. It is not enough just to rely on the victim. That is where it can get very confusing for victims as well. If they say, "This was a hate crime. I am sure this was a hate crime, and that I was being targeted", the police will record it as a hate incident so that they do not lose any incidents. They can then look back, for example, through their records to see whether the person has been targeted previously, and they can look for evidence. For it to become a hate crime, however, there has to be, first, a crime, and they have to be sufficiently sure that they can establish that it was motivated by hostility or there was a demonstration of hostility, which is very different. A lot of those cases fall away at the prosecution stage because they have not been able to establish that it was a hate crime. It is not very clear from the way in which the statistics are broken down. You really have to scratch your head to understand the difference in the two. It has led to a lot of, I think, probably unfair criticism of the police and misunderstanding by victims, who think that their perception is not being taken seriously, when it has not reached the criminal threshold for a prosecution to actually establish the hate element of it.

Mr Kingston: If that goes through as it is, something could be described as "an offence aggravated by hostility", I think.

Ms Kilpatrick: Yes. It would be when —. Am I confusing things?

Mr Kingston: No.

Ms Kilpatrick: I always need to check that I am not making things worse.

Yes, that is right. It is primarily when the crime is being dealt with that that would be reflected in how it is recorded in the court, how it is recorded in police statistics, how it is dealt with and the severity of the sentence. Apart from anything else, it allows courts, police and the criminal justice system to really monitor what is going on out there, because they can mark down whether something was aggravated by racism, for example, or whatever it should be.

We do not think that the Bill, as it stands, will be defective. It is another example of where, having considered all of it, we suggest that the Committee thinks about whether it might be better. On balance, we think that it would be better, but we are not saying that the Bill is defective if it goes through as it is.

Mr Kingston: Just to clarify, are you suggesting that hate crime should be an offence, or do you accept the aggravator model?

Ms Kilpatrick: Certainly, on the basis of this Bill, we accept it. We cannot point to something that says that there has to be a stand-alone offence, no.

Mr Kingston: OK. Thank you.

I think that the rest of my questions are on clause 36. You have made the point that clause 33 deals with racial, religious, sexual orientation and disability aggravators. Clause 36 is about vulnerability. Subsection 7 states that a vulnerable person is:

That captures that it associates age with frailty. Do you think that it captures the age factor sufficiently?

Ms Kilpatrick: In clause 36, we do.

Mr Kingston: You are content with how it captures the age consideration. Right.

Subsection 6 is, perhaps, more an issue for the Department. My understanding of it is that it is intended to avoid "double counting", so to speak. On vulnerability, clause 36(6) states that:

As I say, maybe it is more a question for the Department, but I just want to understand what is meant there and whether it relates to certain offences where you would not add on the vulnerability aggravation. I think that that is what it means. Maybe it is more a question for the Department.

Ms Kilpatrick: I can tell you what I think that it is meant to include —

Mr Kingston: Yes.

Ms Kilpatrick: — but it is by no means limited to that. An example would be where the offence is sexual contact with a child under a certain age.

Mr Kingston: Right, yes.

Ms Kilpatrick: It may also be an aggravating offence because of their vulnerability as a child — or an older person, likewise. I think that that is what it is trying to cover.

Mr Kingston: So that it is not counted twice, almost.

Ms Kilpatrick: Yes. That is my best understanding of it.

The Chairperson (Mr Frew): Just to clarify that: if someone has been charged with child abuse, the aggravator would not come into play because they were already charged with child abuse.

Ms Kilpatrick: Yes. The offence would already be taking account of the vulnerability because it is a material part of the offence: it cannot be committed against somebody who is over the age of 18.

Mr Kingston: I have one last question. You might have answered it already. We had already highlighted that sectarianism was not included when we got the Research and Information Service (RaISe) paper on this. Obviously, religious hostility is included. It is a matter of whether "religious hostility" really captures that in the Northern Ireland context, because, quite often, in Northern Ireland, sectarianism is about community identity rather than just religious identity.

Will you clarify your view on that?

Ms Kilpatrick: We agree. That is why we have pointed to — we can pull it together, specifically on that, if that would be helpful — the definition suggested by the Council of Europe, for example, and looking at what "sectarianism" can mean. You are absolutely right that, particularly in Northern Ireland, it is not as simple as religion. Somebody may have no religion whatsoever but could be attacked because of the perception of their religion or even their political background. We have our own way of describing it, which is different from the way that most other countries in Europe describe it, but, following visits here, the Council of Europe and, I think, the UN developed some working definitions of sectarianism. However, people in Northern Ireland know better than anybody, including the Council of Europe, what will work for here, and that is why we have left it as that.

Mr Kingston: Have you included the Council of Europe's remarks in your paper?

Ms Kilpatrick: Yes, that is in there.

Mr Kingston: OK. Thank you.

Mr Beattie: Alyson, thank you very much. I like to look at things through primary colours, and I like definitions. Therefore, I am supportive of having a definition of the hate aggravator. What gets me a little bit is why we need two definitions. We have been talking about sectarianism. For me, sectarianism falls under the mantle of hate. There is no real difference. If you look at what you are suggesting as a definition of "sectarianism", that falls under what you are saying about a definition of hate: bias, hostility, prejudice, bigotry, contempt. That could be religious contempt, community contempt and all those things. Why would we need two definitions? I remember speaking to Judge Marrinan about that. Why can sectarianism not just fall under the mantle of hate to allow society to move on slightly by normalising hate — that is a strange thing to say, but I think that you know what I mean — as you would have normalised hate anywhere else?

Ms Kilpatrick: There are different things. There is a reason why certain groups of people have what are called protected characteristics, and that is because they have historically been subject to greater levels of abuse and discrimination. The law has protected them specifically, and that sends out a signal that is particularly apparent: if you attack somebody because of their personal identity, it also has an effect on the wider community because all those people in the community are more fearful. As Mr McGlone said, at the minute, you can absolutely see that through the race hate on the streets. The wider community is very fearful. It is about recognising all of that. It is saying that, if you commit a crime on that person, and you have singled them out because of one of their protected characteristics, like race, it has to be treated more seriously because those people are more vulner—. I do not want to use the word "vulnerable" because that is also in the Act for something else. Those people have been subjected, historically, to much greater patterns of —. It is the same. It has been decided for decades now that some characteristics require protection because they are much more likely to —.

Mr Beattie: Sorry, Alyson. I get that. I understand protected groups and why we need to do that. That is not what I am saying. What I am saying is in a far wider context: the hate of somebody because of their religion. We call it sectarianism, but it is just hate. Why do we need to have a subheading?

Ms Kilpatrick: There is no criminal offence of "hate". You can hate —

Mr Beattie: An aggravator.

Ms Kilpatrick: — anybody for any reason. If it is just hate for any particular characteristic, not one of the protected characteristics, it would be so broad that it would apply to everybody. For example, you might hate me because I am wearing glasses. Somebody might have a go because I am wearing glasses, because of my hair colour or whatever. This is very specific. We are telling society that certain people have to be protected in a slightly different way and are sending out a signal that society does not accept singling people out for something "immutable" — that is the word that is used — which means that it is not something that they can change at the end of the day, not like their hair colour or taking off their glasses. It can be very difficult to explain the difference, but it has been developed for a reason, which is to protect particularly excluded, isolated or marginalised people.

Mr Beattie: Therefore, the hate aggravator is for the protected groups, but sectarianism is a wider societal piece. One is just for protected groups, and the other one is for wider society. Just because we have listed the protected groups, it does not mean that there are not other groups who suffer the same things.

Ms Kilpatrick: I am telling you things that you already know well. Northern Ireland is not broken down into just the two groups that make up the sectarian picture. The number of people who have been attacked because of sectarianism is relatively small, and it is not simply about Protestant or Catholic, unionism or nationalism. It is identifying that a person has been singled out because of their community background and treated differently, and society still wants to send out that message. Historically, it was more significant than it is now. The number of sectarian hate crimes is going down, but they have not disappeared; they still occur. It will fill the gap between race and religion, because there are a lot of people who do not see what happens to them as a result of sectarianism as being a race or religion issue, and it will capture that. Also, while the PSNI continues to record it as a sectarian incident, it has to be reflected somehow.

Mr Beattie: That is a fair answer. I will not labour the point. I am a fan of definitions, but I do not need a definition for everything.

Ms Kilpatrick: It would be terrific if sectarianism was completely disappearing.

Mr Beattie: Would misgendering be an aggravator?

Ms Kilpatrick: No. There would be no crime. If you were to call me Mr Kilpatrick, that would not be a crime. If I were a trans woman, and you called me Mr Kilpatrick, that would not be a crime. No crime has been committed. If you committed a crime, which was motivated by hostility towards me because I was either a trans or non-trans person, that could be taken into account in the sentencing, but it is not the crime.

Mr Beattie: I understand that, but could it be an aggravator?

Ms Kilpatrick: No. It is also about the level of severity. A lot of people misgender very innocently, and for a variety of reasons, and it is not about capturing that.

Mr Beattie: I asked the question because it is important. A lot of people think the opposite. It is good to put that to bed to help people understand that they can have political and religious beliefs. If the political and religious belief is that there are only two sexes, then that is it. Your answer will help ease people's minds on the subject.

Ms Kilpatrick: It is important to remember that it is about crimes committed "by reason of". I say that because I am putting together the motivation and hostility. Nobody is suggesting that if a trans woman appeared outside Stormont and was physically assaulted and called names in the course of the attack, that the law should not take that seriously or the judge should not at least remark on it in the sentencing. That is what it is about. It is not about creating offences in cases where somebody may either be mistaken or expressing a difference of opinion. The commission has taken steps in the past to protect people in those circumstances.

Mr Beattie: That is very clear. Thank you very much.

Ms Egan: Thank you for coming today. I want to pick up on Brian's point about the definition of a hate crime that you have recommended. You did not recommend an actual definition, but what do you think of the definition included in the Marrinan review? Would that definition be appropriate in the Bill?

Ms Kilpatrick: Judge Marrinan recommended prejudice and bias. Do you have the definition?

Ms Egan: I have it in front of me. It states:

Ms Kilpatrick: We do not disagree with Judge Marrinan.

Ms Egan: Would it be an appropriate definition for the Committee to consider?

Ms Kilpatrick: Yes.

Ms Egan: Thank you. It is helpful to have something concrete there.
In your evidence, at paragraph 2.58, you mention the need to:

and the fact that UN Committees across the board have recognised:

How will the Bill be able to do that more effectively?

Ms Kilpatrick: You will never ask me back, because the answer that I am going to give you is that it is really difficult. There are still different views on intersectionality, but there is growing evidence and academic research recognising the fact that somebody can be singled out for multiple different reasons. One particular feature is not the one that you can capture in the course of this; it is a combination of things. One example that is often used in court cases is that of a disabled black woman, who can be discriminated against for all those reasons or for one of them, or she might not be discriminated against at all but simply be the unfortunate victim of a crime. I find it difficult to know how that would be defined. It is about finding a way for a court to recognise that some people are so terribly vulnerable because of multiple different characteristics.

Ms Egan: If there are multiple characteristics, could that be included effectively in the Bill by the way in which they are listed?

Ms Kilpatrick: The three of us probably have slightly different views on how that could be done. That is why I am not trying to force my view on anybody else. If cases are put together properly, presented to a judge properly and prosecuted properly, a judge should be able to weigh all the factors and evidence in the balance. If intersectionality were recorded as something that the police and a court had to take into account, they would not lose any of the features that aggravated that particular sentence. A crime could be racist — excuse my language; this is the way that I will put it — but only a little bit, and it is hard to prove that the crime is motivated by that. It could be disablist, but only a little bit. Do you see the point that I am trying to make? There has to be a way of recognising that it is sometimes a person's collective features that have singled them out for a crime to be committed.

That should be able to be done in the course of a proper prosecution if all the evidence is there, but, often, it is not. We know how busy courts, prosecutors and police are; sometimes, it is easier if they are required to record that from the outset. If the Bill requires them to record multi —. I can feel that I have lost you — no?

Ms Egan: No. That is helpful. My last question is on whether you are aware of any other jurisdictions that use a similar aggravator model that captures that well.

Ms Kilpatrick: Emma, you have looked at some.

Ms Osborne: I am not aware of another model that captures that. That does not mean that models do not exist. We can follow up on that, if it would be helpful. The Equality Act 2010 in GB deals with cases where there are two forms of discrimination. I do not believe that a case has ever been taken under those measures, so that may not be helpful. It is also not hate crime legislation or hostility legislation, so, again, it is not particularly helpful. We can go away and think about that and come back to you.

Ms Egan: That would be helpful. Thank you.

Ms Kilpatrick: It can be a complicating or even confusing feature. As attractive as it first appears, it can be difficult, for reasons that are similar to what I said earlier about having something that is difficult to pinpoint. However, there has to be recognition that somebody can be subject to lots of different forms of discrimination that, collectively, make an even more serious picture.

The Chairperson (Mr Frew): To take your example of a disabled black woman, could someone's sentencing after a trial be enhanced because the crime was aggravated by racial hostility, hostility towards disability and the fact that the victim was vulnerable?

Ms Kilpatrick: A judge should take all those factors into account when analysing the facts and delivering an appropriate sentence for that person. It could indicate that the person is a risk not just to a section of the population but to almost everybody in society, because they have hostility towards multiple groups.

Ms Ferguson: Thank you, ladies. It is quite interesting. At the same time, it is a balancing act, because there are competing views. I want to try to tie down something. On the "by reason of" test, you mentioned that "motivated by hostility" evidence is difficult to achieve and that "demonstration of hostility" is not even really being used. If the "by reason of" test is not included in the Bill, by how much will it weaken our ability to tackle hate crime?

Ms Kilpatrick: It will not weaken that ability, because nothing that is there is being removed, but it will mean that we are not using the opportunity to strengthen the legislation by including much broader, more realistic circumstances and evidence. You often hear people talk about how a hate incident or an aggravated incident is motivated by hostility, but you very rarely hear anyone say that they can prove it on the basis of demonstration of hostility. Making racist comments during the burning out of a house or using racist language while chasing a woman down the street would be enough for demonstration of hostility. However, in the reported sentencing remarks in cases, I cannot remember the last time that I saw something with demonstration of hostility. For an offence motivated by hostility, the defence counsel often ends up saying to the courtroom, "You don't know what is in his heart, so how can you prove that it is motivated by hostility?". I am not saying that they all say that, but that is the way in which you would defend such a case. It is about being able to put together a picture to show all the surrounding circumstances and to show that, for example, someone chased a woman down the street by reason of the fact that she is black and they think that she is a migrant.

Ms Ferguson: My second question is about the information that we currently hold on the prevalence of hate crime. The awful scenes that we have witnessed today and over the past week are really concerning. The legislation is good and a positive step forward, but the prevalence of hate crime needs to be recognised. What more needs to be done? You mentioned that the police record hate incidents but that those are not necessarily seen as crimes. Have you looked at how information is currently captured, how that may be improved and what is being captured?

Ms Kilpatrick: All hate crimes should start off being treated as at least a hate incident, unless the evidence of criminality is immediately apparent. If somebody reports an incident and says that it is motivated by hate based on a protected characteristic, the police will put it down as a hate incident. Those statistics are always going to be greater than the number of crimes, ultimately, because, when the police start to investigate, gather evidence and decide whether to charge someone, they will look, first, at whether or not there was a crime and, secondly, at whether they can prove that it was motivated by hostility or was accompanied by demonstration of hostility. They are treated as hate incidents to make sure that the police do not miss potential crimes or patterns. If they are not really sure whether a crime has been committed, but there is a pattern of behaviour, it will flag up particular perpetrators and particularly vulnerable victims or potential victims. It is to make sure that the police are capturing, at the earliest opportunity, the patterns and the risks to enable them to safeguard. It is not just about prosecuting a crime. The police are already pretty good at recording their statistics. They are ahead of most other agencies in doing that. They record incidents based on perception and crimes.

It is less easy to get hold of information once a case gets into the court system. Once a person has been charged, it is almost impossible to get information on, for example, whether they were prosecuted; if they were prosecuted, what happened as a result of the prosecution; how they were sentenced and whether or not the sentence included an aggravating feature. It was difficult to get that information in the mid-2000s when I was working on it, and it has not changed much. The information is not being collected. That is why definitions and overstating things in legislation can be helpful, because it forces people to write down, "It is this, this and this", and that then gets fed into the system. Even if it is defined and fed into the system, it is really important to have some kind of flag, marker or way of tracking those cases, because what you will hear, anecdotally, is that, however horrific the racist motivation for a crime, when it gets to court, that has somehow disappeared. You will hear that an awful lot. Even judges will say that that is just not presented, even though they will suspect that it was a hate-motivated crime.

It is about everyone playing their part equally well and recognising how hate based on hostility is dangerous for those people, for other people who look like them or are like them and for wider society. It helps to identify those perpetrators who are really risky. You need to know. You passed the non-fatal strangulation law, which was very positive. One way of looking at it is that the police now know that, if a man strangles or puts his hands on a woman's throat, that man is much more likely to go on and commit very serious violence on a woman. There is a greater link to murder as well. It is about knowing that those are triggers or indications of what you are dealing with. It is much more work, but it is worth it. All the evidence suggests that that really does work, if you are careful at the beginning and stick with it throughout.

Ms Ferguson: It is about re-emphasising that we need improvement. The data is being captured, but it is not being reported on when —.

Ms Kilpatrick: It is being captured at certain stages but not throughout the whole criminal justice system and not so that you can track individual cases. England has what is known as a case assessment and tracking system (CATS), which attaches a marker to a case — in this case, it would be racial aggravation — that stays with that case throughout and goes on every computer record. The police will record it, as will the courts. Even if the case is dropped, it will be recorded on the computer system that it has been dropped and for what reason. It will be recorded when it goes to sentencing or to trial. In that way, you can really start to establish what is going on. At the moment, while some things are incontrovertible — you cannot say that almost everything is — there is a lot of speculation about what is going on, why things are dropping out and why there is more of this than that.

Ms Ferguson: OK. I have two more questions. Sinn Féin is very clear that, if the crime legislation does not include tackling sectarianism, it is fundamentally flawed. It must go beyond race and religion. How much of a gap do the current proposals leave for us here in the North?

Ms Kilpatrick: It does not mean that it cannot be prosecuted, but it does mean that it is more difficult and less likely.

Ms Ferguson: OK; thank you.

I have always believed strongly in this, as members will know. You recommended a regular review of the legislation on hate crime provisions. How often should that be reviewed, and who should carry that out?

Ms Kilpatrick: Initially, it should be reviewed as frequently as you can do it. In the early stages, you can work out whether it has achieved what you wanted it to achieve. Has it been worth all the time and effort that was put into it? There could be an obligation on various agencies throughout to monitor that, including the police and the Courts and Tribunals Service. The Criminal Justice Inspection (CJINI) could also look at it; it may be one of the best agencies to do that. All the agencies involved should, you would hope, be monitoring that because they also want to know that their resources are going in the right places. Those agencies will want to know what is going on and what needs to be done to address that. You could require that. Certainly, the Department would have to oversee all that. CJINI certainly has superintendence over the criminal justice system, so it could do that, if it wanted to.

The Chairperson (Mr Frew): Ciara is very hot on review, but we are also very hot on commencement. Part 6 will:

Do you have a time frame for when Part 6 should commence?

Ms Kilpatrick: No. That is for you to sort out, I think, whenever you can reasonably and practicably do it, having gone through the proper democratic process. We would say that it should not be delayed unduly, but we recognise that there are some tricky enough things that you are going to have to determine.

The Chairperson (Mr Frew): Yes. That is the political process with regard to the legislative steps. Even with that, however, when the Bill receives Royal Assent, those provisions will sit in abeyance until the Department decides to commence them.

Ms Kilpatrick: I see what you mean. I am sorry; I misunderstood the question.

The Chairperson (Mr Frew): The political questions will be asked and the process will happen. After the Bill goes out the door and becomes an Act, those provisions could still sit not commenced. Do you have any timelines on that?

Ms Kilpatrick: No.

The Chairperson (Mr Frew): Why would the Department hold it up?

Ms Kilpatrick: I do not know. I am not going to speculate.

The Chairperson (Mr Frew): That is fine. Thank you.

Alyson, you said something earlier that intrigued me. I am fascinated by the whole hate crime scenario. Hate is not necessarily a crime. In fact, hate is not necessarily a bad thing. I hate child abuse; I hate sectarianism. I hate all sorts of things, and it is nowhere near a crime. In fact, it is healthy to hate in those regards. I have a real problem with the words "hate crime", although I understand what it feels and looks like. You spoke earlier about someone using a descriptor in the course of a criminal action. In a fit of rage, someone attacks someone and calls them by a descriptor, such as, "You Protestant b******", "You Catholic b******", "You black b******" or, "You baldy b******" — it could be anything. Is somebody's use of a descriptor enough to convict them of a hate crime?

Ms Kilpatrick: No. It has to be established that the crime was perpetrated "by reason of", if you add in the third threshold, that the crime was motivated by hostility or that there is a demonstration of hostility that relates to the crime. If you are insulting somebody and calling them a pejorative name or if you dislike them for other reasons and you utter that in the course of committing a crime, it is not necessarily the same thing. It is not about demonstration of prejudice; it is demonstration of hostility involved in that crime, so it is much higher than that.

I am sure that we have all used inappropriate language at times when the blood is high. This is more than that, however. If it is done right, everyone knows what it is that they are talking about. That is why we also refer to clarity for potential perpetrators. If it becomes too wide and could be used as stick to beat each other, that is not going to help those who have been attacked as a result of hatred of their protected characteristics. It should be sensible. That is not to say that there have not been ill-judged prosecutions brought, but I do not know of any that succeeded where it was something such as that.

The Chairperson (Mr Frew): OK.

You represent the Human Rights Commission, and it amazes me that you have stayed silent on some of the other clauses.

Ms Kilpatrick: OK, give me one.

The Chairperson (Mr Frew): Clause 24 concerns determining the length of a custodial sentence, and we know the motivation for its being in the Bill. Article 7 of the ECHR is engaged, which requires the offences and penalties to be clearly prescribed by law, accessible and foreseeable in their application, prohibiting retrospective imposition of a heavier penalty. We have now incorporated steps, whereby:

Do you have any concerns around that?

Ms Kilpatrick: There are a number of reasons why we were not concerned about any of that. The main reason is that our remit is to advise on what human rights standards require or should be put in place to protect human rights. Sentencing is something within which a huge margin of appreciation is given to states, and you could not turn across Europe and find two countries that are the same. There are certain basic principles. There has to be a certain degree of foreseeability and certainty. It has to be a criminal offence when you commit it, if you are going to be convicted and punished.

We confined ourselves to Part 6 because there were things that we could say on that. In relation to all the other stuff, nothing jumps out at us as causing us concern or as being left out. However, part of that is to do with capacity: it would be a massive piece of work to reflect on all of it. Nothing jumps out at us, but, if you direct us to particular parts, we are happy to give specific advice.

The Chairperson (Mr Frew): In determining the length of a custodial sentence, someone has to be found guilty. The judge will then make sentencing statements on that. This seems to be something additional whereby we are formulating in law four steps that are required. Step 1 states:

I will not bore you with this, because you can read it, but there are then steps 2, 3 and 4. That just seems to be different and a new method of sentencing. I can understand why, and I am not saying that I am opposed to it, but I just thought that human rights would be engaged.

Ms Kilpatrick: Contrary to what a lot of people think, what we say is not actually that prescriptive most of the time. Sentencing is left largely to the legislator, so long as it does not infringe on someone's basic rights or on the principles of the European Convention on Human Rights. This clause simply gives guidance, and guidance is always given on sentencing. We have the sentencing guidelines. It may be setting out more methodically what courts should do when considering the sentence, but, ultimately, it is for the legislation and the sentencing guidelines to set the way in which society has decided that criminality should be punished, subject to some basic principles such as that someone cannot be sentenced retrospectively for something that was not a crime at the time that they did it and other things like that.

The Chairperson (Mr Frew): Clause 29 deals with reduction to sentence. That flips it onto the other side, whereby someone discloses and gets a reduction in their sentence. It may be that not everyone in the victim's family is happy with that. Is there nothing to be said there about a person's right to respect for their private and family life — article 8 of the ECHR?

Ms Kilpatrick: I can always find something to say about human rights; it is relevant to everything. You are absolutely right in the sense that human rights are engaged in all those processes, but whether or not human rights have any influence one way or another is a different matter. We talk about those situations only when we think that there is a concern over human rights or that they can be better protected. Those issues have arisen since time immemorial — since people have been prosecuted through the criminal justice system and sentenced for things. There will be different people in the courtroom, all of whom have been affected by a crime but some of whom will have no input whatsoever into the sentence. I am loath to say this, but the victims directive, which is an EU provision over which there is currently huge discussion around all that, says something about the right for the victim to be consulted and to have their voice heard. I will not get into that today, but there is nothing in this that is either offending of human rights or where human rights are required to be strengthened. If there is a scenario that you are concerned about or think that we need to consider, however, we would be very happy to do that.

The Chairperson (Mr Frew): Thank you.

Ms Kilpatrick: In every piece of work that we do, there will be something that we miss that other people will spot.

Ms Osborne: Forgive me if I am mistaken, but does clause 29 relate to Charlotte's law?

The Chairperson (Mr Frew): Yes.

Ms Osborne: The commission provided advice to the consultation. We can fire that over to you, if that would be helpful.

The Chairperson (Mr Frew): Thank you very much. That would be really good.

Brian and Patsy have indicated that they want to come in again. I do not want to go through a whole round 2, so please be precise and succinct in your questions. The same goes for the presenters in giving their answers, if that is OK.

Mr Kingston: Why do you think that the Department did not include sex or gender-based violence against women as a hostility?

Ms Kilpatrick: The simple answer is that I do not know. I have learned — maybe not quickly enough — not to judge other people's motivations.

Mr Kingston: I ask because of all the focus that is on ending violence against women and girls.

Ms Kilpatrick: I honestly do not know. I am sure that the Department had its reasons and that that was well thought out, so I would not want to second-guess it.

Mr Kingston: I am not suggesting that this covers it — it would be a bit of a stretch — but the last clause in the area dealing with vulnerability, clause 36(7)(b), refers to:

I think that it would be a bit of a stretch to say that "any other reason" would cover sex. That has not been suggested to you, has it?

Ms Kilpatrick: No.

Mr Kingston: Right. That is the only thing that, I think, could somehow be construed as that, but it would be a bit of a long-winded way to get it.

Ms Kilpatrick: I think that it would be, and it would have to say that women were vulnerable to violence by men because they were women, rather than another —. I am not going there today.

Mr Kingston: Obviously, we will take up why it was not included.

The Chairperson (Mr Frew): That is a good point. If sex were to be added — I suppose that it could work both ways too — that would cover misogyny, first of all.

Ms Kilpatrick: Yes.

The Chairperson (Mr Frew): Should that be in clause 33 or clause 36 or in both?

Ms Kilpatrick: We think that it should be in clause 33, because you are not vulnerable to protecting yourself because you are a woman. Women are more likely to be attacked by men or to be victims of violence. The statistics tell us that. However, that is not because they are more vulnerable to it. That is where the hatred comes in. There is a growing misogynistic movement that we have all seen, online particularly, so it is tackling that, as opposed to an inherent vulnerability in being female.

The Chairperson (Mr Frew): Thank you for that. Brian, have you finished?

Mr Kingston: Yes.

Mr McGlone: I go back to the "by reason of". I am not asking you to fill the role of the police or the PPS, but, as you will know, a lot of the hostility and hatred that has been generated has been online. Taking it to the offence bit and it being about motivation, as you quite clearly established earlier: with online comments, narrative by an individual and then an offence being committed, which fit the pattern and the profile, can that be considered by the police and, ultimately, by the PPS in establishing the motivation for an individual to engage in a hate crime?

Ms Kilpatrick: Yes.

Mr McGlone: Right. OK.

Ms Kilpatrick: More and more evidence is online, so people's actions and intentions are online rather than in the street.

Mr McGlone: Yes.

Ms Kilpatrick: Previously, you might have had somebody walking down the street shouting at people or saying, "You should not be living here". Now, they might do it online. If they then go on to offend and pick out a person of colour, for example, and run them from their home, the evidence of what they are saying online about how those people should be removed from their homes is evidence, absolutely.

Mr McGlone: That is grand. That clarifies a lot for me. Thank you.

The Chairperson (Mr Frew): Thank you very much, members and presenters. That was very good. It was a marathon run for you, but it was very informative, so thank you very much.

Ms Kilpatrick: It is warm in here.

Mr Kingston: Hear, hear. Can we open a window?

Ms Kilpatrick: Thank you for your time. If there is anything specific, please come back to us.

The Chairperson (Mr Frew): Thank you for that offer.