Fergus O'Dowd
Ceist:833. Deputy Fergus O'Dowd asked the Minister for Justice to detail how a perception test (details supplied) is applied to An Garda Síochána; and if he will provide details of same. [48187/23]
Amharc ar fhreagraTuesday, 7 November 2023
Ceisteanna (833)
Freagraí scríofa
It has not been possible to collate complete information as requested by the Deputy in the time allowed. I will write to the Deputy directly when the information is to hand.
The following deferred reply was received under Standing Order 51
I refer to Parliamentary Question No. 833 of 7 November 2023 where you sought: “To ask the Minister for Justice to detail how a perception test (the McPherson perception test training) is applied to An Garda Síochána.”
As you will recall, I sought the information you requested from the Garda authorities and undertook to contact you again once the information was to hand.
I am informed by the Garda authorities that An Garda Síochána is very clear on its position in relation to hate crimes. They will not be tolerated.
Garda policy states: “Reports of hate crimes or hate incidents will be recorded and investigated as appropriate, where it is perceived that the perpetrator’s hostility or prejudice against any person, community or institution is on the grounds of the victim’s age, disability, race, colour, nationality, ethnicity, religion, sexual orientation or gender”.
I am advised by the Garda authorities that the defining factor in taking reports of Hate Crime and Hate Incidents, for the operational purposes in order to help pinpoint when the incident should be investigated as a potential hate offence, is the perception of the victim or any other person.
For the purpose of these procedures and all associated documentation, the perception test is the perception of the victim, or any other person, that a crime was motivated by prejudice or hostility.
The perception test is the defining factor in determining if a Hate Crime or Hate Incident has occurred. At the reporting stage only and is not relevant for conviction or prosecution of hate-related offences.
For the purpose of these procedures and all associated documentation, any other person may include:
• A witness
• Garda personnel
• Family members / relatives / friends
• Non-Governmental Organisations or Civil Society Organisations who have knowledge of the victim, alleged crime or scenario
• Support Worker or Professional with particular knowledge of the victim, alleged crime or scenario
Within reason, any other person may not include someone:
• Who has no knowledge of the victim, alleged crime or scenario
• Who is responding to media stories
• Who is reporting for a political or similar motive
An Garda Síochána proactively and respectfully engages with all members of society, and, in particular, persons from minority groups and diverse backgrounds. Each and every hate crime reported is professionally investigated and victims are supported during the criminal justice process.
As part of the Garda Diversity and Integration Strategy, updates to the PULSE system have formalised the recording of hate related motivations for all incidents (both crime and non-crime incidents).
Furthermore, there is a range of legislation under which threats and intimidation can be prosecuted, including the Non-Fatal Offences Against the Persons Act and our Public Order legislation.
Under general criminal law, it is already an offence to commit a hate-motivated crime and a judge can take into account the fact that a crime was motivated by hate when sentencing. Under new legislation, hate-motivated offences will be prosecuted as hate crimes. This means that the hate element of the offence will be presented and challenged in court, and will be recorded as such.
The 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
These include a person’s race, colour, nationality, religion, national or ethnic origin, descent, sexual orientation, gender, sex characteristics and disability.
The Bill also creates new hate offences as aggravated forms of existing offences, for example: “assault aggravated by hatred”. This will allow a court to impose a sentence that recognises the hate component of an offence where it is motivated by hatred or where hatred is demonstrated during the commission of the offence.
Other elements of the existing Act are retained, including the offence of preparing and possessing material likely to stir up hatred and powers of search, arrest and forfeiture necessary for the investigation of the offence.
It is important to note that the working definition of hate crime used by An Garda Síochána that includes the McPherson "perception test" predates the publication of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022. Perception of the victim is not the legal test used in the Bill (which is based on motivation or demonstration of hatred) and has no bearing on the conduct of the prosecution of an offence. It is workable and useful for the purpose for which it is intended; however, it will have to be updated once the new legislation is enacted.
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.
I encourage anyone who has been a victim or has witnessed such a crime to report it to An Garda Síochána for investigation.