James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Deputies for their contributions. To add some context in my response to this amendment, I would like to briefly outline to the House the position that has been taken in the Bill with the adoption of what is commonly referred to as the demonstration test. A particularly robust process is followed to ensure that this legislation is as effective as is possible. Considerable research and consultation were conducted by my Department in collaboration with counterparts in other jurisdictions and with the Office of the Attorney General and the Director for Public Prosecutions in relation to the appropriate tests of proof for the new hate crime offences. The inclusion of a demonstration test of proof was first and foremost a key recommendation from the Oireachtas Joint Committee on Justice in its report on pre-legislative scrutiny of the general scheme of this legislation, which was published in April 2022.

The report recommended the addition of the demonstration test in addition to the motivation test, which had been set out in the general scheme. This recommendation was echoed in numerous submissions to the committee from civil society groups and academics with significant expertise in the area. The change of policy to include a demonstration test in the Bill was agreed by the Government last July.

The demonstration test hinges on a perpetrator demonstrating hostility towards someone with a protected characteristic at the time of an offence being committed. To give some practical examples, this would include the use of hostile or prejudicial slurs gestures or other symbols such as graffiti at the time of an offence being committed. The substantive difference between the demonstration and motivation models is that under a demonstration test, the prosecution must prove the demonstration of hostility but no subjective intent or motivation is required. It is an objective test. A motivation test requires proof of the defendant's subjective motivation for committing the offence, which can set a higher bar to securing a conviction. The use of a demonstration test in proving hate offences will make it easier for An Garda Síochána to investigate potential hate crimes from the beginning, and the hate element of the offence can then be presented and challenged in court if deemed appropriate.

In their amendments, the Deputies seek to remove the demonstration test in the context of all the aggravated offences in sections 17 to 19, inclusive. I regret I cannot agree to the amendments given, as I have set out, the demonstration test plays an important role in hate crime legislation and experts and academics agree it is the most effective tool in ensuring convictions can be secured where hate crimes have taken place. Furthermore, it was an express recommendation of the Oireachtas Joint Committee on Justice, and inclusion of the demonstration test was agreed by the Government after the committee published its recommendations last year. I hope the Deputies can appreciate that the Minister for Justice and I want to ensure the Bill, once enacted, can be as effective as possible and can provide marginalised communities with the reassurance that individuals who perpetrate crimes against them will be held accountable.

Deputy Daly raised a point regarding minor public offences and asked whether these types of offences could be dealt with at a local level by a superintendent or another member of An Garda Síochána. While it is true that certain low-level offences may routinely be dealt with at a Garda station, this legislation deals with comparatively serious offences it would not be suitable to deal with in this manner. Section 18 will create new public order offences that are aggravated by hatred and that would, on summary conviction, make the offender liable to a class C fine, six months' imprisonment or both. All 12 of the specific offences that may be aggravated by hatred carry an uplift in the potential penalties for offenders who are summarily convicted in comparison with the ordinary version of the offence. Such cases would have to be dealt with through the courts system and not by An Garda Síochána.

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