Sharon Keogan (Independent) | Oireachtas source

They are all being discussed together but I have quite a long list of amendments so I want to try to get in as many as I can. On amendment No. 5, the current definition of "hatred" that exists is too loose. The current definition gives too much power to the gardaí, the DPP and the Judiciary. If it came to something like the trans issue, a person could be convicted whether they are favourably disposed to transgender views or opposed to them. A rigorous definition of the concept of "hatred", as utilised in this Bill, is essential for the sake of public interest and legislative clarity. The burden of proof for "hate" refers to the legal standard or threshold that must be met to prove that an act was motivated by hatred in cases involving hate crimes, hate speech or hate-related offences.

This burden of proof is a crucial aspect of law enforcement and judicial processes as it determines whether the accused can be held legally responsible for actions deemed to be motivated by hate. Key aspects of the burden of proof in hate crimes or hate speech include, but are not limited to, proving motivation. One of the main challenges in hate crime or hate speech cases is proving that the motivation behind the act was hate based on characteristics like race, religion, ethnicity, gender, sexual orientation or disability that distinguishes the act from regular criminal activity. The prosecution must show that the defendant's actions were not just illegal in cases like assault, vandalism or verbal abuse, but were explicitly motivated by bias or prejudice against a protected characteristic of the victim.

The burden of proof in criminal cases, including hate crimes, is typically beyond a reasonable doubt. This means the prosecution must convince the court or jury that the accused committed the crime and it was motivated by hate to a very high degree of certainty. In civil cases, such as cases involving discrimination or hate speech, the standard of proof is often on the balance of probabilities. This lower standard requires that it is more likely than not that the action was motivated by hate. However, this poses a dangerous threat to fairness in our justice system. Evaluating the probability that a statement is defined as hate speech injects an arbitrary and opinionated procedure into our courts as the Government has chosen not to define the meaning of hatred for the purpose of this Bill.

In order to meet the burden of proof in hate crime cases, prosecutors must present evidence showing the act was motivated by hate or bias. This can include direct evidence such as statements made by the perpetrator during or before the crime, such as the use of racial slurs, homophobic language or symbols associated with hate. It can also include circumstantial evidence, which is evidence that suggests crime was motivated by hate such as targeting a place of worship, a specific ethnic group or an LGBTQ+ establishment. The accused's history of behaviour may also be taken into account. If the accused has a documented history of bias, hate speech or participation in hate groups, this may be presented as evidence of motivation. When it comes to proving hate in court, courts often require clear and convincing evidence that bias or hatred was a substantial motivating factor behind the defendant's action. Intent is critical. Hate crimes are considered crimes of intent, meaning the prosecution must show the accused intentionally targeted the victim based on a characteristic such as race, religion or sexual orientation. There are challenges in proving hate and subjectivity of motive. It can be difficult to definitively prove what was going on in the perpetrator's mind when they committed the offence, especially if there was no overt statement or symbol of hate.

There are also mixed motives in some cases. The accused may have multiple motivations for their actions, not all of which involve hate. For example, a robbery that also involved racial slurs might raise questions about whether the hate component was a primary motivating factor.

Regarding free speech protections in hate speech cases, the burden of proof must also balance legal protections for freedom of expression. Courts may require a high threshold of proof to determine the speech was incitement to violence or hatred rather than merely offensive or controversial. The burden of proof for hate crimes in demonstrating the accused's actions were motivated by hate, bias or prejudice against a protected characteristic can involve proving intent through direct statements, historical behaviour or other circumstantial evidence.

The standard of proof in criminal cases beyond a reasonable doubt is quite high, making these cases challenging, especially in determining motivation. Adopting a precisely crafted and transparent definition of hate for the purpose of this legislation is essential to minimise and prevent improper convictions of people who have not called for physical harm to others but whose comments could be punished unjustly by this law. The Government must not merely proclaim protected characteristics, as is done so vaguely in this law, as necessary for State protection, while obscuring from the public any definition of what actions are considered criminal under this legislation. The State ought to provide an extensive list for each protected characteristic and outline sample statements and hypothetical cases in which it is extremely clear to the public what kinds of statements are to be criminalised under this Bill.

Regarding amendment No. 7, this Bill lacks a definition of hate as well as what incitement to hatred or violence actually is.