Changes have been made to the government’s draft hate crime bill over concerns that the original version would make it too difficult to prosecute.
The updated law will add a “demonstration test” where prosecutors can rely on the use of hostile or biased insults, gestures or symbols at the time of the offence.
An earlier version of the Heads of the Criminal Justice (Incitement to Violence or Hatred and Hate Crime) Bill 2022 did not include such a test, just a much tougher ‘motivation test’.
This would have required evidence of a person’s subjective motivation for committing a crime – what was on their mind at that precise moment.
The legislation is long awaited as Ireland currently has no specific hate crime legislation.
The addition of a “demonstration test” was recommended by the Oireachtas Judiciary Committee earlier this year.
The committee concluded that it would make the new laws stronger and improve the prospects of prosecution.
A statement from the Justice Department confirmed that Attorney General Helen McEntee would change her approach to the upcoming law to make it easier to prosecute and try hate crimes.
A research report published by the department outlining approaches to hate crime in other jurisdictions found that those whose threshold was based on hate demonstrations were more successful in terms of the extent of prosecution and conviction.
Legislation in England and Wales includes both motivation and demonstration of hate as the threshold for proving hate crimes. However, the report found that the motivation test was hardly ever invoked in that jurisdiction, with prosecution focusing on the more easily proven hostility aspect of the threshold.
In its statement, the department said the original intent was to maintain a relatively high threshold for a hate crime conviction, given the serious implications of having a hate crime on an individual’s record.
“However, the minister has now come to the conclusion that motivation can lie solely in proof of hate crimes
difficult to ascertain and therefore could not lead to a conviction,” it said.
“Secretary McEntee has therefore decided to include a ‘demonstration test’ alongside a ‘motivation test’.
“A demonstration test simply means that an offender is showing hatred towards a member of a protected group/trait at the time of committing an offence. This may include, for example, using hostile or biased insults, gestures, other symbols, or graffiti at the time of the insult.”
The department said that in practice this would mean prosecutors don’t necessarily have to penetrate a criminal’s mind to prove the crime.
The new law will regulate hate crimes by creating new, aggravated forms of certain existing crimes when those crimes are motivated by prejudice against a protected characteristic such as race, color, national origin, religion, ethnic or national origin, sexual orientation, gender and disability.
Serious crimes generally carry higher penalties than ordinary crimes.
https://www.independent.ie/irish-news/news/changes-to-hate-crime-legislation-will-make-it-easier-to-secure-prosecutions-41836334.html Changes in hate crime legislation will make law enforcement easier