A “demonstration test” to help prove new hate crime offences should be introduced under planned laws, the Oireachtas Justice Committee has recommended.
This test would focus on the “actions” of the accused to support a prosecution of hate crime, it said, rather than establishing their “motivation”, which is more difficult to prove.
The report of the committee’s examination of the initial draft legislation for hate crimes said a “demonstration test” would make the new laws stronger and improve the prospects of prosecutions.
Witnesses explained to the committee that such a test can involve use of hostile or prejudiced slurs, gestures, other symbols or graffiti at the time of offending.
Seamus Taylor, Head of the Department of Applied Social Studies in Maynooth University, told the committee these tests make motivation “real” because it gives courts a standard by which to judge.
The report said that both he and Cork-based migrant group, Nasc, argued that having to prove beyond a reasonable doubt the motivation of the accused was “too high” and would lead to low prosecution levels.
“They warned that relying solely on the motivational test is about ‘getting into the mind of the perpetrator’ rather than evidence of demonstrated hostility,” the report said.
While some other witnesses did not favour the “demonstration test” model, the committee sided with it and recommended to the Government that the test be included in the General Scheme of the Criminal Justice (Hate Crime) Bill 2021.
Announcing the new bill a year ago Justice Minister Helen McEntee said the new offences would mean that a crime, such as an assault, can be investigated as a potential hate crime and that evidence of the hate element could be presented in court.
She said that where a jury finds the crime was a hate crime and convicts the person, an enhanced penalty for the new offence is available to the judge at sentencing.
The committee report also recommended changes to provisions regarding comments made during political discourse and a defence for statements made within the House of the Oireachtas.
“Witnesses feared that this defence may be seen as a loophole and employed in the context of election campaigns, where racist or incendiary discourse may be used against migrants or those from minority communities,” the report said.
It said that Martin Collins, co-director of Pavee Point Traveller and Roma Centre, had told the committee that it was often during canvassing for elections where racist discourse or hate speech is levelled against the Travelling and Roma communities.
“Witnesses cautioned against the Head [of the Bill] proceeding as it is currently formulated due to the latitude in these defences which could provide somebody with the opportunity to claim they are simply speaking in a political context and use these defences as a protection or exemption to use language that is clearly agitational in nature,” the report said.
It said these broad defences would “significantly impair” the possibility of securing a conviction for incitement to hatred.
The committee recommended the inclusion of the word ‘contempt’ in the definition of hate, to address hate crime against people with disabilities.
It also recommended training on hate crime and hate speech for all relevant professionals.
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