The Minister for Justice Helen McEntee has announced that she is amending her approach to the forthcoming Incitement to Hatred and Hate Crime Legislation – the Hate Speech and Hate Crime Bill – to make it easier to secure prosecutions and convictions for crimes motivated by hate.

The new law will legislate for hate crimes by creating new, aggravated forms of certain existing criminal offences, where those offences are motivated by prejudice against a protected characteristic. It will also update the previous 1989 legislation on hate speech to reflect the current context more accurately; including online hateful content.

Minister McEntee will now include a ‘demonstration test’ in the investigation of hate crimes which will be an additional/alternative test to the ‘motivation test’ as previously outlined in the General Scheme of the Bill, which was published in 2021.

The changes reflect Minister McEntee’s determination that the law is effective and victim-centred – and will result in prosecutions where serious crimes are committed. This was echoed by the Joint Committee on Justice during pre-legislative scrutiny of the Bill, and by key stakeholders that the Minister has consulted with.

Minister McEntee said, “this is a hugely important piece of legislation which will tell victims of hate crimes that we are determined to help them, and will also let perpetrators know that they will be punished for spreading hate, prejudice and division.”

“I know how much it means to many groups that we get this legislation right – that it is an effective law which An Garda Síochána will be able to prosecute, and which will allow convictions be secured in the courts. That is why we must make sure that the Bill is victim centred and effective, and that is why I am making these changes. We must get this Bill right, and it is my intention to publish the full Bill in early September and enact it by the end of the year.”

A motivation test for hate crime requires proof of someone’s subjective motivation for committing an offence – what was in their mind at that exact moment. However, the Minister has now concluded that motivation alone in proving hate crime offences can be difficult to establish and therefore might not result in a conviction.

A demonstration test means simply that a perpetrator demonstrates hatred towards a member of a protected group/characteristic at the time of an offence being committed.

This might involve, for example, the use of hostile or prejudiced slurs, gestures, other symbols or graffiti at the time of offending. In practice, it means that by using a demonstration test, the prosecution does not necessarily have to get inside the mind of a perpetrator to prove the crime but can use a demonstration test as an alternative method of proving a crime committed is a hate crime within the provisions of the legislation.

In addition, the Criminal Justice (Incitement to Violence or Hatred and Hate Crime) Bill 2022 – the full title for the Hate Crime Bill – will repeal and replace the hate speech provisions in the Prohibition of Incitement to Hatred Act 1989.

The Bill will strengthen the law around incitement to hatred by proposing clearer and simpler offences of incitement to hatred than those in the existing legislation.

These new offences will cover inciting hatred against a person or persons because they are associated with a protected characteristic, and also disseminating or distributing material inciting hatred.

The new legislation will set the threshold for criminal incitement to hatred as intent or recklessness. This means a person must either have deliberately set out to incite hatred, or at the very least have considered whether what they were doing would incite hatred, concluded that it was significantly likely, and decided to press ahead anyway.

The legislation will contain robust safeguards for freedom of expression, such as protections for reasonable and genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting.