Paul Murphy (Dublin South West, RISE) | Oireachtas source

I move amendment No.9:

In page 16, to delete lines 3 to 10.

The three amendments remove what is known as the demonstration test to demonstrate that these are hate crimes and therefore the crime itself becomes aggravated by hatred. This is very unusual in criminal law that one is not relying on motivation but instead seeking to rely simply on demonstration to establish that a particular offence was aggravated by hatred. We think this is a significant problem. It heightens the risk of abuse of this section. It means that rather than having to prove hatred was a motive for abusive or insulting behaviour, for example, in relation to public order offences, all a garda would have to do was say under oath that someone used a racist or sexist slur during or immediately after abusive or insulting behaviour. We know the word of a garda in the courts would carry a lot of weight. It is explicitly stated it is immaterial whether an accused person’s hatred is also on account of any other factor which therefore states that the alleged expression of hatred is purely incidental, happens after the fact and is not related as a point of motive.

There is a very interesting paper by Dr. Amanda Hayes and Dr. Jennifer Schweppe which deals extensively with the question of the demonstration test. They point out that the demonstration test is not used in hate crime legislation anywhere else in the world apart from the UK, Singapore and Malta. They point out that it can lead to a disproportionate level of convictions of people from oppressed minorities for hate crimes, ironically, and that is precisely what has happened with black people in the UK. They also show how being convicted of a hate crime creates a stigma and can prevent people from finding employment, meaning that wrongful convictions for any form of hate crime can have serious lifelong consequences for people. Therefore we are opposed to switching motivation to simply demonstration.

A classic example of this would be someone involved in a public order offence. Let us say we understand the offence actually happens. In the aftermath of that offence, an individual says a racist or sexist slur, which obviously they should not do and they should be condemned for doing so, but while that is very unpleasant and we do not want people to be saying racist or sexist slurs, the fact they do so after committing a public order offence does not prove the public order offence itself was aggravated by hatred and that the hatred they expressed afterwards had any relationship to the public order offence they committed. Yet, that is it. With the demonstration test the State will not have to prove motivation. Like section 11 and the thought-crime element, it is very problematic.

The paper I referenced reported on the views of Irish criminal justice practitioners on the demonstration test. It says that although some consider that motivation was more challenging to prove than demonstration, which is the case I presume the Minister of State will make, a substantial number of the practitioners to whom they spoke nonetheless argued that the demonstration model is too low a threshold for an aggravated offence. A barrister told them there might be many reasons for somebody saying something inadvertent or otherwise, but actually to prove motivation is harder. Therefore, that barrister, looking at it with his or her defence hat or constitutional hat on, would prefer that. At the same time, it was noted that lawyers in Ireland are not unused to the challenge of proving motive. The barrister gave the example of how the legal position is that it is not necessary to prove a motive but it is helpful if you do. What a prosecutor is worried about is that where there is a crime for which there is not a motive, a jury may look less favourably on it in the case of the accused. Criminal justice practitioners who participated in the research expressed concerns in respect of the utility and application of the demonstration test in an Irish context. Gardaí who prosecute most crimes in lower courts were largely confident about their ability to prove a bias motivation, readily identifying the types of proofs whose presence could be probed in investigation.

I do not think the case has been made to move away from the general rule of proving a motivation and intent along with an act in terms of criminal law, reducing that requirement and simply having a demonstration test replace it. If we are looking at crimes that are aggravated by hatred, the onus is on the State to prove that happened. There are many ways to imagine how that can be proved, such as the actions of somebody in advance of a public order incident which is genuinely aggravated by hatred, the things they say in the course of that and perhaps the sort of material we were talking about earlier being on someone’s computer. There are many ways evidence could be adduced to make the case that a particular crime was motivated by hatred and therefore should be an aggravated offence as opposed to simply relying on the demonstration of hatred in the course of or in the aftermath of that.

See this speech in context