Authentic Identity, Human Dignity and the Integrity of Civil Registration in Witness Protection: Commentary on Doe & ors v Commissioner of An Garda Síochána & ors [2025] IESC 44

1. Introduction

This commentary examines the separate but concurring judgment of Hogan J. in the Supreme Court of Ireland in Doe & ors v Commissioner of An Garda Síochána & ors [2025] IESC 44. While he agrees with the Chief Justice’s judgment and the order proposed, Hogan J. focuses on two crucial constitutional aspects:

The nature and source of the constitutional rights invoked by the appellants; and
Whether those rights have been infringed by the State’s refusal to alter civil registration records.

The appellants are participants in the State’s Witness Security Programme (“WSP”). After providing significant assistance to An Garda Síochána in a major criminal investigation against a criminal gang, the first and second appellants and their family were relocated abroad for their safety.

Their central complaint is that the State has refused to provide altered Irish birth certificates for the children born in Ireland (and, to a lesser degree, an altered marriage certificate). Living under assumed identities in the foreign state, they argue that the refusal to issue new or altered civil status documents:

Creates constant practical and administrative difficulties in their daily lives;
Forces them to lie or dissimulate in dealings with foreign authorities (e.g. schools, official forms); and
Constitutes a breach of their constitutional rights, particularly rights bound up with personal identity and dignity.

Hogan J.’s judgment addresses whether the Constitution guarantees:

A right to have one’s identity recognised by the State; and if so,
Whether that right extends beyond recognition of the authentic identity to a right to have altered (i.e. fictitious) civil registration documents created or supplied for protective purposes.

The judgment is also significant for its treatment of:

The status of human dignity under the Irish Constitution (right vs value);
The shift from “unenumerated rights” to “derived rights” after Friends of the Irish Environment;
The State’s obligations under Article 40.3.2° (“as best it may”) to protect life and person, balanced against other compelling public interests, particularly the integrity of the civil registration system.

2. Summary of the Judgment

2.1 The issues

The core questions addressed by Hogan J. are:

Does the Constitution protect a right to personal identity, including name and civil status details, and if so from where is that right derived?
Does the constitutional protection of identity and dignity oblige the State to issue altered birth and marriage certificates for persons in the Witness Security Programme?
How should that claimed obligation be balanced against the State’s vital interest in maintaining an accurate and authentic civil registration system under the Civil Registration Act 2004?

2.2 Core findings

Hogan J. reaches the following principal conclusions:

There is a constitutionally protected right to one’s name and identity.
This right is recognised as part of:
- The dignity of the individual in the Preamble; and
- The protection of the person in Article 40.3.2°.
It is not a “free-standing” unenumerated right, but a right derived from these constitutional texts.
The right is a right to authentic identity.
The constitutional right is to have one’s true name and civil status correctly recorded and recognised. It does not extend to a right to have fictitious or altered civil registration records created in order to support a cover identity, even in a witness protection context.
The State’s interest in preserving the integrity of civil registration is “very powerful”.
Drawing particularly on Chesnokov, the judgment emphasises that accurate birth registration underpins a wide range of legal rights and entitlements and that the Civil Registration Act 2004 (“the 2004 Act”) is premised on scrupulous accuracy.
The State’s duty to protect life and person (Article 40.3.2°) is qualified by practicability and competing interests.
Citing Moynihan v Greensmyth, Hogan J. underlines that the State must protect these rights “as best it may”. This leaves space for the State to consider other legitimate interests, such as the integrity of vital records.
A very high evidential threshold applies before the Constitution could require the falsification of civil records.
Only where there is “very clear and cogent evidence” that breaking with the authenticity of civil registration is constitutionally required (e.g. potentially where life is directly in jeopardy) could such an argument be entertained. On the facts, that threshold was not met.
Result: the appeal is dismissed.
While recognising the real inconvenience and hardship suffered by the appellants, the Court holds that:
- their constitutional right to identity has not been infringed; and
- the Constitution does not require the State to supply altered birth or marriage certificates in these circumstances.

3. Analysis

3.1 Precedents and Authorities Cited

3.1.1 Chesnokov v An tArd-Chláraitheoir [2017] IECA 19

Hogan J. relies on Chesnokov to articulate the public interest in accurate civil registration. He quotes Irvine J. at paragraph 11, stressing:

Birth certificates are routinely required throughout a person’s life for:
- School enrolment;
- Passports, driving licences, social welfare; and
- Determining legal thresholds for voting, driving, marriage, alcohol purchase, criminal capacity, etc.
Accuracy in both date and place of birth is therefore “of critical and vital importance”.

Hogan J. notes that the Civil Registration Act 2004 rests on this very premise (para. 5). The quotation from Irvine J. frames the State’s interest not as a mere administrative preference but as a fundamental structural interest in the operation of the legal system and in the allocation of rights and responsibilities over a lifetime.

This case functions as the counterweight to the appellants’ claim: any constitutional obligation to alter records must be balanced against this powerful systemic interest in authenticity.

3.1.2 Habte v Minister for Justice and Equality [2019] IEHC 47; [2020] IECA 22; [2021] 3 IR 627

Habte is the central prior authority on identity and official documentation. It involved an applicant whose certificate of naturalisation recorded an incorrect date of birth, arising from confusion between the Ethiopian Coptic calendar and the Gregorian calendar.

In the High Court, Humphreys J. held:

There exists a right to registration of birth, and implicitly to accurate registration, reflected in:
- Article 24(2) ICCPR; and
- Article 7 of the UN Convention on the Rights of the Child.
This right is closely connected with the enjoyment of socio-economic and other rights and must be recognised as:
- a right under Article 8 ECHR; and
- an “unenumerated” constitutional right to have one’s identity correctly recognised by the State (para. 43).

The Court of Appeal (Power J.), after extensive review, agreed that:

A person’s date of birth is a significant aspect of personal identity and familial links;
The right to have one’s date of birth accurately recorded forms part of the rights at the “highest level of our legal order” (citing McKechnie J. in M.R. v An tArd-Chláraitheoir); and
There is an implied constitutional onus on the State to “accurately record and represent central aspects of personal identity.”

However, Habte concerned the correction of a mistaken official record to align with the truth. The right relied on was a right to accurate identity documentation, not a right to constructed or fictitious identities.

Hogan J. accepts the substantive principle of a constitutional interest in identity, but he re-anchors it doctrinally in light of subsequent Supreme Court authority (particularly Friends of the Irish Environment):

He agrees with Power J. that identity rights are engaged and fundamental.
He disagrees with Humphreys J. to the extent that identity is treated as a free-standing “unenumerated” right without sufficient anchoring in the constitutional text (para. 13).

Instead, he conceptualises the right to identity as a “derived right” flowing from:

the dignity of the individual in the Preamble; and
the protection of the person in Article 40.3.2°.

3.1.3 Friends of the Irish Environment v Government of Ireland [2020] IESC 49; [2021] 3 IR 1

Hogan J. explicitly situates his analysis within the framework laid down in Friends of the Irish Environment (“FIE”). The Supreme Court in FIE:

Expressed concern with the sometimes open-ended invocation of “unenumerated rights”; and
Suggested instead the language of “derived rights”—rights which, though not explicitly listed, must have a close and demonstrable link to the constitutional text.

Mulcahy J. in the High Court judgment in Doe applied this methodology, asking from where in the Constitution the asserted right is derived, rather than treating it as a free-floating, judge-created norm. Hogan J. endorses this approach (para. 13).

The significance of FIE in this case is that it:

Constrains the method of recognising new rights; and
Requires identity rights to be tied concretely to:
- the textual reference to the dignity of the individual; and
- the “person” protected in Article 40.3.2°.

3.1.4 Dignity and related Irish case-law: McGee, Garvey, Simpson, M.R. v An tArd-Chláraitheoir

Hogan J. draws on a line of authority recognising the importance of human dignity in Irish constitutional jurisprudence:

McGee v Attorney General [1974] IR 284 (Henchy J.): dignity is central to the understanding of marital privacy and personal autonomy.
Garvey v Ireland [1981] IR 75 (Henchy J.): further reliance on dignity as part of the interpretive matrix of rights.
Simpson v Governor of Mountjoy Prison [2019] IESC 81; [2020] 3 IR 113 (MacMenamin J.): dignity is described as a value which “underlies all fundamental rights” (para. 146), particularly in the context of prison conditions and treatment of detainees.
M.R. v An tArd-Chláraitheoir [2014] IESC 60; [2014] 3 IR 533 (McKechnie J.): referenced indirectly via Power J.’s citation in Habte, for its treatment of rights at “the highest level of our legal order”.

From these cases, Hogan J. draws the conclusion that:

The reference in the Preamble to “the dignity … of the individual” has long been treated as equivalent to a constitutional right or at least a quasi-right in practice (para. 14); and
Even if strictly denominated as a “constitutional value”, dignity operates with the same practical force as a constitutional right in many contexts.

3.1.5 Comparative constitutional authorities: German and Indian constitutional law

Hogan J. uses comparative materials to illuminate the status of dignity:

German Basic Law Article 1: “Human dignity shall be inviolable.” This is the most famous dignity clause in comparative constitutional law.
The Mikrozensus Case (1969) 27 BVerfGE 1:
- The German Constitutional Court describes human dignity as “the highest value of the value order of the Basic Law”.
- This shows that even when dignity is formally framed as a right, it is also conceptualised as a value.
Articles 2 and 3 of the Basic Law: guarantee life, physical integrity, personal development, and equality — demonstrating the interweaving of dignity with concrete rights.
Indian Constitution Preamble: also speaks of “the dignity of the individual”.
Puttaswamy v Union of India [2017] 10 SCR 569 (Chandrachud J.): dignity is described as uniting and permeating the fundamental rights, with privacy as an aspect of dignity and necessary to a life of liberty and meaning (para. 718).

These references support Hogan J.’s conclusion that, in practice, the distinction between dignity as a value and as a right can be blurred and may not have great practical significance in Irish law, at least in this context.

3.1.6 Article 40.3.2° and Moynihan v Greensmyth [1977] IR 55

Article 40.3.2° obliges the State, “as best it may”, to protect and vindicate the life and person of every citizen. In Moynihan v Greensmyth, O’Higgins C.J. held that:

The phrase “as best it may” signifies that the State’s protective obligations are not absolute and must be balanced with other considerations, including practicability and competing public interests.

Hogan J. uses this to justify why the State is not constitutionally compelled to adopt measures (such as falsifying civil registers) that would seriously compromise another fundamental State interest—namely, the integrity of the civil registration system—except perhaps in cases of overwhelmingly compelling evidence of necessity.

3.1.7 The People (DPP) v AM [2025] IESC 16

Although post-dating the knowledge cutoff of many general commentaries, the judgment quotes Collins J. in DPP v AM for the proposition that protection of the “person” in Article 40.3.2° extends beyond physical integrity to:

“the integrity of the human mind and personality” (para. 50).

This citation reinforces the idea that:

Personal identity and personality—mental, psychological, informational—are within the scope of “person” in Article 40.3.2°; and
A right to identity can therefore be coherently treated as a derived right under Article 40.3.2°, rather than an abstract unenumerated right.

3.2 The Court’s Legal Reasoning

3.2.1 Step 1: Identifying and grounding the relevant constitutional rights

Hogan J. first considers whether the appellants’ complaints engage constitutional rights at all. Following the High Court and Habte, he accepts that:

Issues of civil registration, birth certificates and official documentation do indeed implicate constitutional protections.

He then asks: what is the precise source of these rights in the Constitution?

Key elements of his reasoning:

From “unenumerated” to “derived” rights (paras. 11–13).
- In light of Friends of the Irish Environment, it is no longer appropriate to speak of entirely free-standing, unanchored “unenumerated rights”.
- Instead, rights must be derived from the constitutional text, showing a clear linkage to express provisions or to constitutionally enumerated values.
The role of dignity in the Preamble (paras. 14–19).
- The Preamble’s reference to “the dignity … of the individual” has been long treated in Irish case-law as having near-right status.
- Even if technically a “value”, dignity “underlies all fundamental rights” (Simpson), and Hogan J. proposes to treat it “as the equivalent of a specific enumerated constitutional right” (para. 14).
- He acknowledges Collins J.’s forthcoming judgment, which suggests treating dignity as a value rather than a right, but expresses doubt that the distinction has real practical impact in this context (paras. 15–17).
Article 40.3.2° and the “person” (paras. 21–22).
- Article 40.3.2°’s protection of the “person” encompasses the “integrity of the human mind and personality” (DPP v AM).
- It follows that a person’s identity is “quite obviously a central feature of the personality of every human” (para. 21).

From this, Hogan J. concludes:

“In my view, the right to the recognition of one's identity by the State is a key feature of both the dignity of the individual (in the Preamble) and the protection of the person in Article 40.3.2°. To that extent it could be said that this constitutional right (or rights) is wrapped up into two enumerated constitutional rights, namely, the dignity of the individual and the protection of the person.” (para. 13)

Thus, the Court affirms a constitutionally protected right to identity, not as an abstract creation but as a logical consequence of:

the dignity clause in the Preamble; and
the guarantee of the person in Article 40.3.2°.

3.2.2 Step 2: Defining the content of the right to identity

Having established that such a right exists, the next step is to define its scope. Hogan J. focuses particularly on:

The right to a name; and
The right to a defined identity (para. 20).

He notes that:

It is “impossible to function in a modern society without a defined name and identity” (para. 20); and
Many constitutional assumptions (e.g. Article 16 on voting) presuppose that individuals have a stable identity and can establish it.

Therefore:

“The right to such a name and identity must accordingly be taken to form part of the rights derived from the protection of the ‘person’ in Article 40.3.2°.” (para. 21)

Crucially, at the conclusion of his judgment, he states:

“I feel bound to conclude that while the right to one's name and identity is constitutionally protected … this right is to have the authentic name and civil registration details recorded.” (para. 26, emphasis added)

Thus, the constitutional right is framed as a right to authenticity and accuracy, not to the engineering of official falsehoods—even if such falsehoods serve protective purposes.

3.2.3 Step 3: Balancing identity rights and the integrity of civil registration

The appellants invoke their right to life and person (Article 40.3.2°) and to identity and dignity. On the other hand, the State relies on:

Its vital interest in maintaining an “authentic” system of civil registration; and
The limitations implicit in the phrase “as best it may” in Article 40.3.2°.

Hogan J. accepts:

The State has a general duty to protect persons who put their lives at risk in assisting law enforcement (para. 22); but
The State is not constitutionally obliged to establish any particular programme, such as the WSP (para. 22).

He then stresses:

Article 40.3.2°’s “as best it may” clause implies that the State can and must consider other interests (para. 23); and
One such interest is “the State's very clear interest in upholding the accuracy and integrity of its system of civil registration” (para. 23).

As a matter of principle, Hogan J. holds:

“Very clear and cogent evidence would accordingly be required in any given case before the contention that the State was somehow constitutionally obliged in the interests of safeguarding the constitutional rights to life and the person to break with the authenticity of these records could even possibly arise.” (para. 24)

This is an important articulation of a high evidential threshold before any constitutional obligation to falsify civil records can be contemplated. The State’s interest in civil registration integrity is described as “very powerful” and not easily overridden.

3.2.4 Step 4: Applying the standard to the facts

The appellants’ evidence showed:

Significant inconvenience, distress and difficulty in daily life abroad;
A degree of forced dissimulation vis-à-vis local authorities (e.g. school registration); and
Genuine emotional and practical hardship arising from the lack of consistency between their official Irish documents and their protective identities.

However, Hogan J. emphasises:

The evidence did not demonstrate that their lives had been directly placed in jeopardy by the absence of altered certificates (para. 25).

He explicitly leaves open the possibility that:

“It may possibly be that if the evidence in the present case had gone as far as showing that these appellants' lives had been directly put in jeopardy as a result of the State's failure to supply altered birth and marriage certificates then different considerations might apply. But this case has not been established on the evidence and I express no view on this broader question.” (para. 25)

Thus, on these facts:

The hardship is recognised but characterised as “considerable personal inconvenience and unhappiness” (para. 25);
This does not meet the “very clear and cogent” evidence threshold necessary to even consider requiring falsification of civil records as a matter of constitutional mandate; and
Accordingly, the right to identity, properly understood as a right to authentic civil registration, has not been infringed.

The appeal is therefore dismissed (para. 28).

3.3 Impact of the Judgment

3.3.1 Clarifying the constitutional right to identity

The judgment makes an important doctrinal contribution by:

Affirming that a right to personal identity (including name and core civil status details) is constitutionally protected; but
Locating this right as a derived right from:
- the dignity of the individual in the Preamble; and
- the protection of the person in Article 40.3.2°;
Explicitly rejecting the need to invoke an unmoored “unenumerated right” in this area.

For future cases involving:

Names;
Gender markers;
Dates of birth;
Parentage and filiation on civil records;

this framework will be highly relevant. It suggests that:

Where a person seeks accurate recognition of their true identity, the Constitution strongly supports such a claim; but
Where a person seeks alteration away from the truth—even for compelling reasons—very different constitutional considerations arise, with the default position being preservation of authenticity.

3.3.2 Strengthening the principle of authenticity in civil registration

The judgment underscores that:

The civil registration system is a foundational legal infrastructure; and
The State’s interest in its integrity is “very powerful” and may justify significant limitations on individual claims.

This has clear implications for:

Witness protection schemes;
Requests for entirely new or fictitious identities sanctioned by the State;
Potential attempts to regularise informal changes of identity for non-protective reasons (e.g. evasion of liabilities).

It signals that:

Any legislative move to authorise systematic falsification of civil records would need very careful constitutional justification; and
Even ad hoc departures from authenticity would only be contemplated in the most exceptional circumstances and on the basis of compelling evidence.

3.3.3 The State’s protective duty and its limits

The case also illuminates the scope of the State’s duty under Article 40.3.2° to protect life and person:

The duty is serious and real, particularly where individuals risk their lives to assist the administration of justice; but
It is not absolute and is qualified by the “as best it may” language, allowing the State to factor in competing constitutional interests and practical constraints;
Participation in a witness protection programme is not itself a constitutional entitlement; its design and modalities lie, in the first instance, within the legislative and executive sphere.

For future litigation involving:

Prisoner protection;
Domestic violence and protective measures;
Informant and witness protection arrangements more generally;

this case will likely be cited to show:

The State must do much, but not absolutely everything conceivable, to protect life and person; and
Certain structural interests (like civil registration integrity) can legitimately limit specific protective measures sought by individuals.

3.3.4 The role of dignity in Irish constitutional law

Hogan J.’s judgment, together with the anticipated judgment of Collins J., appears to mark a further stage in the Irish constitutional engagement with dignity:

Dignity is recognised as having a practically operative role equivalent to a constitutional right;
At the same time, there is caution about the doctrinal classification of dignity as “right” versus “value”;
In line with comparative jurisprudence (German and Indian), dignity is seen as:
- central to the interpretation of multiple rights (privacy, personal autonomy, equality, identity); and
- a unifying concept underlying and connecting specific textual protections.

Future litigants are likely to:

Invoke dignity both as an overarching interpretive principle and as part of specific derived rights (e.g. identity, bodily integrity, informational autonomy); and
Find in this judgment support for the proposition that dignity can be directly operative, even where the precise classification (value vs right) remains debated.

3.3.5 A narrow but significant opening: cases of direct jeopardy

Importantly, Hogan J. expressly leaves open the possibility that, in an exceptional case where:

The absence of altered documentation directly places a person’s life in jeopardy;

different considerations might apply (para. 25).

This suggests:

The Court is unwilling to absolutely rule out any constitutional duty to depart from civil registration authenticity;
But it would only even entertain such a claim on the basis of “very clear and cogent” evidence of direct, concrete danger.

This creates a narrow, fact-sensitive opening for future cases where:

There is compelling proof that without State-facilitated alterations, a witness or informant’s life is immediately at risk;
All other means of protection have been tried or are clearly inadequate.

In such a scenario, a future Court might have to perform a more acute balancing analysis between:

The right to life and person (at its most intense); and
The systemic value of civil registration integrity.

4. Complex Concepts Simplified

4.1 “Unenumerated” vs “Derived” Constitutional Rights

Historically, Irish courts recognised “unenumerated rights”: rights not specifically listed in the Constitution but considered implicit in its structure and values (e.g. marital privacy, bodily integrity).

However, in Friends of the Irish Environment, the Supreme Court:

Expressed unease with identifying entirely new rights without clear textual anchoring; and
Suggested the term “derived rights” instead:
- These are rights that are not literally spelled out but can be logically and fairly inferred from the constitutional text and established rights.

In Doe, the right to identity is treated as a derived right, not a free-floating unenumerated right:

It is “derived” from:
- the dignity of the individual in the Preamble; and
- the protection of the person in Article 40.3.2°.

4.2 Dignity as a “Right” or a “Value”

The Constitution’s Preamble refers to “the dignity … of the individual” but does not list “dignity” again in the rights articles. This raises a technical question:

Is dignity itself a separate right? Or
Is it a value that informs and shapes other rights?

Hogan J. notes that:

Irish case-law often uses dignity as if it were a right;
Comparative courts (German, Indian) blur the distinction, using dignity as both a value and a right; and
For practical purposes, especially in this case, the distinction may not make much difference:
- Whether as right or value, dignity is powerful and underlies many specific protections (privacy, equality, identity, bodily integrity).

4.3 The State’s duty “as best it may” in Article 40.3.2°

Article 40.3.2° says the State guarantees to protect and vindicate the life and person of every citizen “as best it may”. This means:

The State must take reasonable, good-faith measures to protect life and personal integrity; but
It is not required to do everything imaginable, at any cost, ignoring other constitutional values and constraints.

In practice, this allows the State to balance:

Protective duties (e.g. safeguarding witnesses); and
Other important aims (e.g. maintaining the integrity of civil records, managing limited resources, respecting the separation of powers).

4.4 The nature of the civil registration system

The civil registration system records key life events: births, marriages, deaths. It provides foundational legal facts, such as:

Who a person is (name, parentage);
When and where they were born;
Whether and when they married.

These facts are essential for:

Determining age-based legal rights (voting, driving, marriage, criminal responsibility);
Establishing citizenship, nationality, and family relationships;
Access to education, welfare, and identification documents.

Because so many legal consequences depend on these records, the law places a premium on accuracy and authenticity. Deliberate falsification risks:

Undermining trust in public records; and
Causing knock-on legal distortions (e.g. miscalculated ages, entitlements, or familial links).

4.5 Witness Security Programme (WSP) and constitutional limits

A witness security or protection programme may involve:

Relocating witnesses and their families;
Providing them with new addresses and support;
Sometimes, using assumed names or cover identities in day-to-day life.

However:

The Constitution does not guarantee a right to such a programme;
The design and operation of the programme is primarily a legislative and executive matter;
The Constitution may limit certain measures—such as falsifying core civil records—unless absolutely necessary and justified by exceptionally strong evidence of risk.

5. Conclusion

Doe & ors v Commissioner of An Garda Síochána & ors [2025] IESC 44 is a significant constitutional decision at the intersection of:

Personal identity and human dignity;
State protective obligations towards vulnerable witnesses; and
The structural integrity of the civil registration system.

Hogan J.’s judgment firmly establishes that:

There is a constitutionally protected right to personal identity, including name and core civil status details;
This right is derived from:
- the dignity of the individual in the Preamble; and
- the guarantee of the person in Article 40.3.2°;
Dignity, whether classified as a right or a value, plays a powerful operative role in the protection of individuals;
The right to identity, however, is fundamentally a right to authenticity: to have one’s true identity accurately recorded and recognised, not to have fictitious official identities created.

Balanced against this is the State’s weighty interest, grounded in Chesnokov and the Civil Registration Act 2004, in maintaining the scrupulous accuracy of civil registration records. Article 40.3.2°’s “as best it may” language allows the State to take this systemic interest into account when determining how far it must go, constitutionally, to protect life and person.

The Court holds that only where there is “very clear and cogent evidence” that lives are directly jeopardised by the lack of altered certificates might the Constitution even begin to require a departure from authenticity. On the facts before the Court—marked by substantial inconvenience and distress but not proven direct mortal jeopardy—this threshold was not met, and the appeal was dismissed.

The judgment’s broader significance lies in:

Consolidating the post-Friends of the Irish Environment approach to “derived rights”;
Clarifying the role and reach of dignity in Irish constitutional law, in dialogue with comparative jurisprudence;
Reinforcing the principle that the civil registration system must remain authentic, with only the narrowest of exceptions;
Emphasising that the State’s protective duties, though real and serious, are not limitless and must be balanced against other core constitutional values.

In sum, Doe stands as a leading authority on the constitutional protection of authentic identity and illuminates the careful balancing required when the demands of witness protection collide with the foundational legal architecture of civil registration.