There have been increased calls for hate crime legislation to cover offences against the LGBTQ+ community. What is proposed is that if someone commits a crime – like an assault – their punishment will be more severe if the reason they did it was hatred, because the victim was LGBTQ+, rather than just to steal their wallet.

To understand this issue we need to delve into sentencing and how it works. This is also relevant if you’ve been the victim of a crime, or have recently committed one. With pubs opening up again, there’s a higher chance of people doing something they shouldn’t after a few pints, regardless of sexuality.

Ireland has a very high conviction rate: 94% of cases prosecuted end in a conviction. While the vast majority of convictions are where someone has pled guilty rather than been convicted after a trial, in every case there is a conviction, the defendant will be sentenced, for example: to a fine, to time in prison, community service, to lose their driving licence or be put on the sex offenders’ list.

Determining the punishment involves a sentencing hearing.  The prosecution gives the court an outline of the facts and the offenders previous convictions, if any. In very serious cases they also give their opinion on how severe the particular crime was and if the defendant cooperated. The prosecution will also set out any aggravating factors. Hatred of the victim based on their being LGBTQ+ is what is proposed.

The defence lawyer will put in what is known as a “plea in mitigation”. This plea tries to tell the court all the reasons why the convicted person should not be treated harshly. This can be on the facts of the case- maybe someone was provoked into committing an assault – for example where you punch someone who called you a slur. Provocation is not a defence to any crime except murder, but is a “mitigating factor” taken into account when the judge sentences the person. It will lessen the severity of the sentence.

Other mitigating factors might be the offenders’ personal circumstances; maybe you have done a lot of charity work in the past, or someone with problems has turned their lives around. There isn’t really any limit on what can be relied on in mitigation, but the court isn’t obliged to follow any of it if they don’t want to. The defence can urge court to give a particular type of sentence, but that doesn’t mean the court will agree.

The victim of the offence then has the right to give a “victim impact statement” outlining how the crime has hurt them and affected their life.

All this is taken into account by the judge when they impose the sentence. While legalisation gives the maximum penalty for various offence, and less frequently a minimum penalty, Judges have a lot of latitude how they do this.  A judge will often first give a “headline sentence” – the punishment the crime warrants before taking mitigating factors into account. People often get quite scared when they hear this. The court will then list all of the factors it is taking into account in the sentencing including any aggravating or mitigating factors.

For hate crimes, this where the judge will take the harm done to you and why into account. Someone who breaks your nose because you are gay is likely to get a harsher sentence than someone who just broke your nose because you knocked over his pint. The legislative proposals intend to strengthen this.

A sentence doesn’t necessarily mean going to prison. The courts have a wide variety of options open to them, particularly in less serious offences. The vast majority of cases are dealt with in the District Court where the maximum sentence anyone can get on one offence is a year in prison. More serious offences in the higher courts can be up to life.

Usually in District Court cases someone will get a fine or perhaps a suspended sentence. If the court feels they deserve a chance they might get the probation act and be left without a conviction on their record. This is useful if you want to work abroad.

The majority of cases end in people pleading guilty. This is the most frequently relied upon mitigating factor. In some cases, there are mandatory penalties, like murder which carries a mandatory life sentence and drink driving which carries a mandatory driving disqualification. The mandatory nature of the sentencing tends to discourage people from pleading guilty.

It was suggested at one point that hate crimes should carry mandatory minimum penalties. These can be very inflexible and would make it less likely people would plead guilty. The better option would be to make hate crimes legally mandated as a severe aggravating factor.

Donagh and Matthew are our top legal minds. A gay man and a proud ally they write about legal issues affecting the community. They can also be found here and here.