Top court to examine if people in witness protection have right to false birth certificates

High Court reporters

The rights of people in the State’s witness protection programme will be examined by the Supreme Court as part of a family’s case seeking false birth certificates to align with their new identities.

A three-judge panel of the court said the appeal brought by the “Doe” family raises a “serious issue” about the rights of identity and equality of people protected under the programme, which has been in place since at least the murder of journalist Veronica Guerin in June 1996.

The court will consider whether the State is constitutionally obliged, or required under European human rights law, to provide protected witnesses with a new identity from birth in official documents.

The Doe family, whose new identities are concealed, signed up to the Garda-operated witness security programme due to continuing threats and harassment after they provided information to gardaí about the activities of a criminal gang.

The State had previously relocated the family within Ireland several times but gang threats continued. They were then placed overseas and given new identities.

Their youngest child is the only one with a birth certificate in the family’s new name, having been born after they changed their identities. The rest of the Does have passports and the parents have driving licences in their new names.

They claim they have encountered difficulties registering the children in schools and seeking certain benefits.

To overcome this, they have had to rely on assistance from an overseas host agency. Anticipating further problems, they argue they will never be entirely independent, contrary to what they understood was the programme’s intention.

The High Court’s Mr Justice Rory Mulcahy concluded the lack of new certificates did not infringe upon the Doe family’s rights under the Constitution, European Convention for the Protection of Human Rights and Fundamental Freedoms and the EU Charter of Fundamental Rights.

He accepted the State “could” amend the Civil Registration Act of 2004, which provides that a birth registration can only be altered if it contains a clerical or factual error.

However, accommodating the Does’ situation through legislative change would somewhat diminish the status of birth and marriage registers as historical records, he said.

In their application to the Supreme Court, the Does contended the legal barrier to securing new birth certificates and a marriage certificate undermines their fundamental rights. They claim that, for practical reasons, they need these documents to fully participate in civil life.

The Garda Commissioner, Minister for Justice, Ireland and the Attorney General countered that the sample of people affected by this is very small, and the rights claimed by the Does are not established in law.

Three Supreme Court judges agreed the appeal should be heard. Although the sample of affected people is very small, it “will grow”, they said.

The judges said the court will consider the identity rights that exist for participants of the witness security programme and whether the State must have legislation or some other process to enable birth and marriage certificates to be issued under new and protected identities.

No date has yet been set for the appeal.