Dáil Éireann Debate, Tuesday - 24 October 2023
402. Deputy Michael Healy-Rae asked the Minister for Justice how will the McPherson perception test will be used, specifically with regard to the crime of incitement to hatred; and if she will make a statement on the matter. [46603/23]
View answerThe Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 repeals and replaces the provisions of the Prohibition of Incitement to Hatred Act 1989, updating the existing offences of incitement to hatred to include incitement to violence towards individuals and groups based on their protected characteristics.
The Bill also creates specific, aggravated forms of certain existing criminal offences, where those offences are motivated by hatred of a protected characteristic, or where hatred was demonstrated at the time of committing the offence. The protected characteristics covered by the new legislation are race; colour; nationality; descent; religion; ethnic or national origin; sexual orientation; sex characteristics; gender, and disability.
For the purposes of this legislation, the meaning of "hatred" in the Bill represents the word’s ordinary and everyday meaning. It is an established term on the statute book, and it is carried over from the definition of hatred in the Prohibition of Incitement to Hatred Act 1989.
The Garda Síochána Equality, Diversity and Inclusion (EDI) Strategy Statement and Action Plan 2019-2021 sets out a working definition of hate crime that includes the McPherson "perception test". This predates the publication of the 2022 Bill. The Garda EDI Strategy focusses on operational tools to support the identification, reporting, investigation and prosecution of hate crimes.
I understand the test is used to help pinpoint when an incident should be investigated as a potential hate offence. It is not a legal definition and has no bearing on the conduct of the prosecution of an offence. It is useful for the purpose for which it is intended and will be updated following the enactment of the new legislation.
As is the case for all offences, a court will require proof beyond reasonable doubt of an offence of incitement to hatred or violence, or any other offence aggravated by hatred, as set out in the provisions in the legislation. The test included in the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 is an objective test. This means that for a prosecution to succeed, a jury would have to be convinced beyond reasonable doubt that an offence had been committed.
