The Garda uses a different, more expansive definition of hate crime than the one included in new legislation currently before the Oireachtas, a comparison between the two shows.
A new Bill which covers hate speech and hate crime has passed through the Dáil and will its Seanad stages in the coming weeks.
The legislation creates new, aggravated forms of certain existing criminal offences, such as assault, where those offences are motivated by hatred against people with a “protected characteristic” – which include race, gender, religion, sexual orientation, etc.
However, it will be for the courts to decide whether there has been hatred, based on a “demonstration test” – where the perpetrator of the crime has demonstrated hatred towards the victim based on a protected characteristic.
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This is a more restrictive definition of a hate crime than the one employed by the Garda, which depends only on the perception of the victim.
The Garda definition of a hate crime is “any criminal offence which is perceived by the victim or any other person to, in whole or in part, be motivated by hostility or prejudice, based on actual or perceived age, disability, race, colour, nationality, ethnicity, religion, sexual orientation or gender”.
This is displayed on posters in Garda stations around the country and on the Garda website.
In a statement issued in response to questions from The Irish Times, the Department of Justice said: “An Garda Síochána uses a working definition of hate crime for operational purposes; to help a victim to report what they perceive to have been a potential hate offence, and for An Garda Síochána to decide if an incident should be investigated as a potential hate offence. It is not a legal definition but is workable and useful for the purpose for which it is intended.
“The approach taken in the legislation is to extend protection to persons who are victims of hate-based offences if they were targeted because they have, or were perceived to have, one or more protected characteristics. The protected characteristics for the purpose of the legislation are; race; colour; nationality; religion; national or ethnic origin; descent; gender; sex characteristics; sexual orientation; and disability.
“These were selected as the characteristics most commonly cited as grounds for hate crime and hate speech in the course of the extensive public consultation conducted in the development of the legislation, and through targeted engagement with vulnerable and minority groups.”
Government sources familiar with the issue acknowledged the difference between the proposed legislation and the Garda definition, and suggested that the Garda would likely have to amend its definition of a hate crime if and when the new legislation is passed.
The Garda Press Office responded that the definition of hate crime used by the force is “based on the international McPherson ‘perception based test’ and was introduced in 2019 as part of the Garda Diversity and Integration Strategy.
“An Garda Síochána does not comment on the detail of proposed legislation however An Garda Síochána is required to and always acts in accordance with enacted legislation.”
The “McPherson test” is derived from a British report on a racist murder of a black man and holds that if racism is perceived by the victim of a crime, then it is a racist crime.
Garda statistics show that there was a significant increase in “hate incidents” in Ireland last year. Hate incidents, where no crime has been established but where hatred on account of protected characteristics is perceived, are also recorded by the gardaí.
A total of 582 hate related incidents were reported to gardaí in 2022 compared to 448 in 2021.
During 2022 the Garda implemented a Hate Crime Learning Programme developed in conjunction with NGOs. This programme was completed by nearly 85 per cent per cent of all garda members.
