Changes have been made to the government’s hate crime law for fear that the first draft would make it too difficult to secure a prosecution.
The updated legislation will add a “demonstration test,” where prosecutors can rely on the use of hostile or biased defamation, gestures or symbols at the time of the violation.
An earlier draft of the Heads of Criminal (Incitement to Violence or Hate and Hate Crime) Bill 2022 contained no such test, instead only a much more difficult “motivation test”.
This would have required proof of a person’s subjective motivation for committing a crime — whatever was going on in their minds at the time.
Legislation is long awaited as Ireland currently has no specific hate crime laws.
The addition of a “demonstration test” was recommended by the Oireachtas Justice Committee earlier this year.
The commission concluded that it would make the new laws stronger and improve the prospects of prosecution.
A statement from the Ministry of Justice confirmed the Minister of Justice Helen McEntee would change its approach to the forthcoming bill to make it easier to obtain prosecutions and convictions for crimes motivated by hate.
A research report published by the ministry outlining how to tackle hate crimes in other jurisdictions found that those whose threshold is based on demonstrations of hate were more successful in terms of prosecutions and convictions.
Legislation in England and Wales includes motivation and demonstration of hate as well as the threshold for proving hate crimes. However, the report found that the motivation test was almost never relied upon in that jurisdiction, with prosecutions focusing on the easier-to-prove demonstration of the hostility aspect of the threshold.
In its statement, the department said its initial intention was to maintain a relatively high threshold for conviction for a hate crime, given the dire consequences of having a hate crime on a person’s criminal record.
However, the minister has now concluded that only motivation can be in proving hate crimes
difficult to determine and therefore may not lead to a conviction,” the report said.
“Minister McEntee has therefore decided to include a ‘demonstration test’ in addition to a ‘motivation test’.
“A demonstration test simply involves an offender displaying hatred toward a member of a protected group/characteristic at the time of committing a crime. This could include, for example, the use of hostile or biased slander, gestures, other symbols or graffiti at the time of the offense.”
The department said that in practice this would mean that the prosecution would not necessarily have to creep into an offender’s mind to prove the crime.
The new law legislates for hate crimes by creating new, aggravating forms of certain existing offences, where those offenses are motivated by prejudice against a protected characteristic such as race, color, nationality, religion, ethnic or national origin, sexual orientation, gender and disability.
Criminal offenses will usually carry a higher penalty than the common offence.