Helen McEntee (Meath East, Fine Gael) | Oireachtas source

For the purposes of this Bill, there are 12 aggravated offences which can be classified as "hate crimes". These vary from very serious offences like assault to violent public order offences or criminal damage. These offences have been selected as they are the most commonly cited crimes against people on identity grounds. Where a perpetrator is found guilty of one of these offences that is aggravated by hatred, a sentence uplift will be applied in comparison to the base offence. It will be a matter for the trial judge to determine the appropriate sentence, however a maximum additional sentence of plus six months for a summary conviction and plus two years for conviction on indictment will be available; except where already at the maximum possible.

We have built in a safeguard so that where there is not sufficient evidence to convict a person of the "hate crime" offence, they may still be convicted of the base form of the offence.If someone is assaulted and it is a hate crime, whether they succeed in the hate crime side of it or not, it is still an offence because they have been assaulted. This avoids the risk that the entire prosecution could fall if the hate element cannot be proven.

Also included is a general provision under section 20 of the Bill, which provides that where there is evidence of hatred in relation to any offence beyond the 12 specific aggravated offences, hatred can be considered an aggravating factor at sentencing and the judge would be able to reflect this in the offender's record. This formalises a process that is already a judicial reality in our courts system and offers the broadest protection possible for victims of offences that are aggravated by hatred.

The proposed test of proof in hate crime cases will be evidence of motivation by hatred against someone with a protected characteristic or a test of demonstration of hatred against someone with a protected characteristic or both around the time of committing the offence. The addition of this latter demonstration test stems from the pre-legislative scrutiny conducted by the Joint Committee on Justice. The committee strongly recommended that the Bill include a demonstration test in addition to the existing motivation test in the Bill. This recommendation emerges on the basis of the considerable challenges in proving motivation in hate crimes. Motivation is not required to be proven in most other crimes; rather, the normal legal standard in most crimes is proof that you have committed the crime. The demonstration test allows for this normal standard of proof to be applied in the course of seeking a prosecution for a hate crime. In the most basic sense, a demonstration test means that a perpetrator demonstrated hatred towards someone with a protected characteristic at the time of an offence being committed through a particular slur, graffiti or in some other way. It is an objective test, that is, what would a reasonable person believe? It is not the accused's own belief.

Inclusion of the demonstration test was an express recommendation of the justice committee to ensure Ireland's new hate crime legislation is effective. Legal experts have noted that without this legal test, there is little point in putting hate crime into statute. The Government approved my recommendation to include the demonstration test in the text of the Bill last July. The decision came on foot of the justice committee's recommendation. We have looked at other jurisdictions. We have examined the recommendation and decided this is necessary to ensuring convictions. Contrary to concerns that the demonstration test would lead to a spike in convictions, including for spurious claims, evidence from these jurisdictions shows that the conviction rate for hate crime and the guilty plea rate for hate crimes is at a similar level to that of normal crimes. In Northern Ireland, for example, where a demonstration test of proof has been in effect for many years, the Public Prosecution Service received 344 files involving hate crime in 2021-22. Over the same period, over 4,500 hate crimes and hate-motivated incidents were reported to the PSNI. This highlights that there is not a deluge of hate crime convictions just because the demonstration test exists.

Importantly, it centres on the effect the hate crime has on the victim, rather than having to prove the hateful intent and motivation of the offender. It is, after all, the demonstration of hate that causes the additional harm to victims. Proof shows victims of hate crime are more seriously impacted. It is not necessarily the assault or act itself but the demonstration of hate towards that person that causes the most harm.

I am aware that this was discussed in the final debate in the Dáil. An example was given about someone making a slur in the heat of the moment, which could lead to them having a hate crime on their record, and that this could be disproportionate. We need to be clear there is nothing disproportionate in how someone feels when being assaulted or otherwise offended against because of hatred for who they are. There is a profound difference between how victims of hate crimes feel in comparison to victims of other crimes. We must remember this at all stages of this debate.

It is also important to say that a prosecution cannot be brought forward without the direction of the Director of Public Prosecutions. This is an important safeguard.

I apologise for taking longer than expected but it is an important Bill we need to be able to discuss at length. I look forward to engaging with all of my colleagues today and in the next few weeks. I recognise that there are different viewpoints, with some saying the Bill does not go far enough and others that it goes way too far. I assure Senators that the Bill is not radical, as some claim; it is proportionate, evidence-based and in line with legislation in countries similar to ours. I hope I can count on Senators' support to progress this much-needed legislation, which has been resoundingly welcomed by those who live in this country and who have been impacted by hate speech and hate crimes.