Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I should note that the Department of Justice started with a very different viewpoint on this. We closely followed the pre-legislative scrutiny of this committee and amended policy in response to that. In fairness to my colleague, when the Minister, Deputy McEntee, initially introduced the general scheme that came before this committee, the new law provided for a motivation test for hate crime offences. A motivation test requires proof of someone's objective motivation for committing an offence or, in other words, what was in his or her mind at that exact moment, which gets to some of what Deputies Daly and Bríd Smith referenced. This was because my Department initially sought to keep a relatively high threshold in respect of this, given the serious repercussions for having a hate crime on someone's record and fear that heat-of-the-moment actions might be criminalised.

However, many stakeholders, including people who this committee heard from, believed that a motivation test alone in proving hate crime offences can be difficult to establish and might not result in a conviction. This committee conducted pre-legislative scrutiny on legislative processes and recommended in a report to me that the Bill include a demonstration test in addition to the motivation test. For those following these proceedings, a demonstration test simply means a perpetrator demonstrates hatred towards a member of a protected group or characteristic at the time of an offence being committed. This might involve, for example, the use of hostile or prejudiced slurs, gestures or other symbols, or graffiti at the time of offending. No subjective intent or motivation is required. It is an objective test. A motivation test alone requires proof of the perpetrator's objective motivation for committing the offence, which can set a higher bar to secure convictions.

Given the recommendation that emerged from this committee, my Department re-examined the policy. We conducted targeted research into how hate legislation has been implemented in practice in other jurisdictions, most notably in the UK. My officials met heads of the hate crime units of the UK Home Office and the Northern Ireland Department of Justice. The provisions of recent relevant legislation in Scotland were also examined in detail. These consultations provided valuable insight into how the demonstration test has operated in these jurisdictions for many years. On the basis of this additional review, and further to confirmation from the Attorney General that there was no legal or constitutional impediment to adopting a similar approach, we decided we should change policy in the new hate crime legislation and include that stronger test of proof in the Bill.

As Deputy Daly will know from his professional background, it is important context that while the demonstration test plays a very important role in hate crime legislation, and experts and academics largely agree it is the most effective tool in ensuring convictions can be secured where hate crimes have taken place, to accept these amendments would row back on that. We are also obviously operating in an environment where the DPP will need to decide whether to take a case, in addition to juries needing to decide beyond reasonable doubt that the accused carried out an offence motivated by hate of a protected characteristic, or whether there is evidence beyond reasonable doubt that the perpetrator demonstrated such hatred at the time the offence was committed. Other normal safeguards are in place, including the DPP, the DPP's decision-making process, Garda investigations, the role of our juries, beyond reasonable doubt, etc.

This issue arose from this committee's pre-legislative scrutiny and a lot of research was done arising from that. I am comfortable with the position we have now arrived at. We were informed by the committee's work, however.