Case Summary: [2025] IESC 44

Factual and Procedural Background

The Plaintiffs/Appellants are voluntary participants in the State's Witness Security Programme (WSP). Following their assistance to the Gardaí in a major criminal investigation into a criminal gang, the first and second Plaintiffs/Appellants provided information about the gang's activities. As a result, they suffered intimidation and harassment by members of that gang. To protect them, the State arranged for their relocation to a foreign country.

A central feature of the WSP arrangements in this case is that the Plaintiffs/Appellants and their Irish-born children continue to have their original Irish civil status records (notably birth certificates, and to a lesser extent a marriage certificate) in authentic form. The Plaintiffs/Appellants complain that the State has refused to provide altered birth certificates for them and for their children born in Ireland, and has also not provided an altered marriage certificate. They contend that this refusal causes serious personal and administrative difficulties in their new country of residence.

In particular, the Plaintiffs/Appellants object to the fact that, due to the lack of altered birth certificates, they are required to dissimulate or even lie about dates of birth and related details in everyday contexts such as school admissions for their children. They argue that the State’s failure to provide altered birth (and, to a lesser degree, marriage) certificates amounts to a denial of their constitutional rights.

In the High Court, the claim was rejected. The High Court judge, in a detailed judgment in Doe v. Garda Commissioner [2024] IEHC 115, held that civil registration and the provision of birth certificates do engage constitutional provisions but concluded, following established authority, that the Plaintiffs/Appellants had not made out their constitutional challenge.

The Plaintiffs/Appellants appealed to the Supreme Court. The judgment summarised here is a concurring judgment of one member of the Supreme Court. This judge agrees in general with the judgment and proposed order of the Chief Justice but writes separately to address two aspects of the constitutional claim advanced by the Plaintiffs/Appellants: (i) the nature and source of the constitutional rights at issue, and (ii) whether those rights have been infringed on the facts of this case.

Legal Issues Presented

1. Whether the Constitution protects a right to the recognition of one’s name and identity by the State, including in the context of civil status records such as birth certificates, and how that right is properly characterised within the constitutional framework (as a “derived” right linked to specific constitutional text, rather than a free‑standing “unenumerated” right).
2. Whether, on the facts of this case, the State’s refusal to supply altered birth and marriage certificates to participants in the Witness Security Programme infringes the constitutionally protected rights to name, identity, dignity, and the protection of the person under Article 40.3.2°.
3. What standard of proof or evidential threshold must be met before the Constitution could require the State to depart from the authenticity of its civil registration records (for example, by issuing altered or fictitious certificates) in order to protect the rights to life and person of individuals in the Witness Security Programme.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chesnokov v. An tArd-Chláraitheoir [2017] IECA 19	Importance of a system of civil registration that accurately records and registers births, including the critical role of correct dates of birth for a wide range of rights and obligations throughout a person’s life.	Used to emphasise the State’s “vital interests” in maintaining a scrupulously accurate civil registration system and to underpin the conclusion that the Civil Registration Act 2004 rests on this premise, thereby supporting the strong State interest in authenticity of records.
Doe v. Garda Commissioner [2024] IEHC 115	High Court decision in the present proceedings; recognition that civil registration engages constitutional provisions, and rejection of the Plaintiffs/Appellants’ claim.	Cited as the High Court judgment under appeal. The Supreme Court judge expresses agreement with the High Court’s analysis of the constitutional source of the rights at issue.
Habte v Minister for Justice and Equality [2019] IEHC 47; [2020] IECA 22; [2021] 3 IR 627	High Court and Court of Appeal recognised: (i) a right to registration of birth and to accurate registration under international instruments and the ECHR; (ii) a right to have one’s identity correctly recognised by the State, characterised in the High Court as an unenumerated constitutional right and in the Court of Appeal as a right at the “highest level” of the legal order, engaging personal identity rights.	Used as the leading prior authority on rights relating to identity and accurate official documentation. The Supreme Court judge accepts that such rights exist but disagrees with the High Court’s characterisation of them as free‑standing unenumerated rights, instead locating them as “derived” rights closely linked to constitutional text (dignity and protection of the person).
M.R. v. An tArd Chláraitheoir [2014] IESC 60; [2014] 3 IR 533	Statement by a member of the Supreme Court that certain rights are at “the highest level of our legal order.”	Quoted (via the Court of Appeal judgment in Habte) to support the characterisation of a person’s date of birth and related identity information as a significant aspect of personal identity that engages fundamental constitutional protections.
Friends of the Irish Environment v Government of Ireland [2020] IESC 49; [2021] 3 IR 1	Introduction by the Supreme Court of the terminology of “derived rights” rather than “unenumerated rights,” emphasising that implied personal rights must have a close link to the text of the Constitution.	Relied on to frame the present analysis: the rights invoked by the Plaintiffs/Appellants must be treated as rights derived from specific constitutional provisions (such as dignity and protection of the person), not as free‑standing unenumerated rights.
McGee v. Attorney General [1974] IR 284	Example of the Supreme Court treating the reference to the dignity of the individual in the Preamble as having constitutional significance.	Cited as one of several cases illustrating that the Preamble’s reference to the dignity of the individual has long been treated as equivalent to, or closely akin to, a constitutional right or quasi‑constitutional right.
Garvey v. Ireland [1981] IR 75	Further illustration of the constitutional significance attributed to human dignity.	Used, along with other cases, to support the proposition that the dignity of the individual is an enumerated constitutional value, effectively equivalent in weight to a specific constitutional right.
Simpson v. Governor of Mountjoy Prison [2019] IESC 81; [2020] 3 IR 113	Statement that dignity “underlies all fundamental rights.”	Relied on to show that, in Irish constitutional jurisprudence, dignity is closely intermeshed with fundamental rights such as protection of life, person, privacy, and equality, reinforcing the idea that dignity can be treated as equivalent in practice to a constitutional right.
Puttaswamy v. Union of India [2017] 10 SCR 569	Indian Supreme Court description of dignity as permeating the core of rights guaranteed to individuals, uniting fundamental rights, and being closely linked to privacy and the enjoyment of life and liberty.	Cited as a comparative constitutional authority. The quoted passage is used to illustrate how another constitution, whose Preamble also refers to the dignity of the individual, treats dignity as a value that is effectively inseparable from enforceable constitutional rights.
The People (Director of Public Prosecutions) v. AM [2025] IESC 16	Definition of the “protection of the person” in Article 40.3.2° as extending beyond physical integrity to the “integrity of the human mind and personality.”	Used to support the conclusion that the right to one’s identity is a central feature of personality and therefore forms part of the protection of the person guaranteed by Article 40.3.2°.
Moynihan v. Greensmyth [1977] IR 55	Interpretation of Article 40.3.2°, specifically the phrase “as best it may,” as implying that the State’s duty to protect life and person is tempered by considerations of practicability and may require the State to take other considerations into account.	Invoked to support the view that, although the State owes duties to protect individuals (such as participants in the WSP), those duties are not absolute and must be balanced against other legitimate State interests, including the maintenance of an authentic civil registration system.
Mikrocensus Case (1969) 27 BVerfGE 1 (German Federal Constitutional Court)	Statement that “Human dignity is the highest value of the value order of the Basic Law.”	Cited as comparative authority from German constitutional law, demonstrating that dignity is treated as the highest constitutional value and that the distinction between dignity as a right and as a value is not always strictly maintained in practice.

Court's Reasoning and Analysis

The Supreme Court judge begins by affirming general agreement with the judgment of the Chief Justice and the order proposed. The separate judgment focuses on two issues: (i) the nature and source of the constitutional rights said to be engaged, and (ii) whether those rights have been infringed on the evidence in this case.

1. Characterisation of the Claim and the State’s Interest in Civil Registration

The judge notes that the Plaintiffs/Appellants are voluntary participants in the Witness Security Programme and have been relocated abroad to protect them after they assisted the Gardaí in a major criminal investigation, leading to intimidation and harassment by a criminal gang. The core of their complaint is that the State’s refusal to issue them, and their Irish-born children, with altered birth certificates (and an altered marriage certificate) causes them serious practical and personal difficulties in their new country of residence, including the need to dissimulate or lie in routine administrative contexts. They claim this refusal violates their constitutional rights.

The judge observes that there is little doubt about the State’s vital interest in a scrupulously accurate system of civil registration. Referring to the Court of Appeal decision in Chesnokov, the judgment reproduces a detailed passage explaining the centrality of accurate birth registration and correct dates of birth to the enjoyment of numerous rights and entitlements (such as schooling, passports, driving licences, social welfare, voting, marriage, criminal capacity, and even mundane matters like purchasing alcohol or watching age‑restricted films). The Civil Registration Act 2004 is said to rest on this premise.

The judge agrees with the Chief Justice that the Plaintiffs/Appellants’ claim is, in substance, a challenge to the constitutionality of the Civil Registration Act 2004, to the extent that it does not accommodate the altered documentation they seek.

2. Source and Nature of the Constitutional Rights

In the High Court, the judge (now anonymised) rejected the Plaintiffs/Appellants’ claim but accepted that civil registration engages constitutional provisions, drawing on the reasoning in Habte. In that earlier case, the High Court had treated the right to have one’s identity correctly recognised by the State as an unenumerated constitutional right, influenced by international instruments (the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child) and by Article 8 of the European Convention on Human Rights. The Court of Appeal in Habte likewise concluded that a person’s date of birth is a significant aspect of personal identity, linked to family, and that the right to have it accurately recognised and recorded by the State falls within rights at the highest level of the legal order. The Court of Appeal also endorsed the view that there is an implied constitutional onus on the State to accurately record and represent central aspects of personal identity.

The High Court in the present case noted that shortly after Habte, the Supreme Court in Friends of the Irish Environment stated that the language of “derived rights” was more appropriate than “unenumerated rights.” This was not merely a change in terminology; it emphasised that implied personal rights must have a close link to the constitutional text. The High Court therefore queried the specific constitutional source from which the right to correct identity in official documentation is derived and identified that prior authority had grounded this right in the personal rights protected by Article 40.3, and in particular the State’s duty to vindicate the person of every citizen.

The Supreme Court judge agrees with this analysis and expressly disagrees with the approach in the High Court judgment in Habte insofar as it treated the relevant right as a free‑standing unenumerated right. In light of Friends of the Irish Environment, it is said that it is no longer appropriate to speak of an implied constitutional right that is purely free‑standing or divorced from the text of the Constitution. In any event, in the present case it is not necessary to adopt such an approach because the claimed rights can be located squarely within the constitutional text.

In the judge’s view, the right to the recognition of one’s identity by the State is a key feature of both the dignity of the individual (referred to in the Preamble) and the protection of the person in Article 40.3.2°. Thus, the constitutional right (or rights) at issue can be understood as encompassed within two enumerated constitutional elements: the dignity of the individual and the protection of the person.

3. Dignity as Constitutional Right or Value

The judgment then addresses a more theoretical question: whether the reference to the dignity of the individual in the Preamble should be regarded as a specific enumerated constitutional right or rather as a constitutional value. The Supreme Court has not definitively ruled on this question. However, the case law demonstrates that the Preamble’s reference to dignity has long been treated as equivalent to a constitutional right, or at least as a quasi‑constitutional right. Several decisions are mentioned in this regard, including McGee, Garvey, and Simpson, where dignity plays a central role in the reasoning.

The judge notes that, even if dignity were not classified as a constitutional right in its own right, it is at least an enumerated constitutional value. Quoting from Simpson, dignity is said to “underlie all fundamental rights.” On this basis, the judge proposes to treat the reference to the dignity of the individual in the Preamble as equivalent to a specific enumerated constitutional right and as having the same constitutional value as such a right.

The judge acknowledges that another member of the Supreme Court (in a separate judgment in the same case) suggests that dignity should be regarded as a constitutional value rather than a right. Comparative constitutional discussion is invoked, noting that even in systems like the German Basic Law, where human dignity is expressly declared to be inviolable as a right, it is also treated as the highest value of the constitutional order. Similarly, in practice, dignity is read together with other rights (such as those protecting life, physical integrity, development, and equality), and the distinction between dignity as a right and as a value is not consistently maintained.

The judge also refers to the Constitution of India, whose Preamble similarly speaks of “assuring the dignity of the individual.” The Indian Supreme Court’s judgment in Puttaswamy is quoted to show that dignity is treated there as permeating the core of fundamental rights and being closely linked to privacy, life, and liberty. This comparative discussion reinforces the idea that, in practical terms, dignity functions in close conjunction with specific rights and is effectively inseparable from them.

The conclusion drawn is that, whether classified as a right or a value, human dignity is deeply intertwined with rights to life, person, privacy, and equality under the Irish Constitution. The conceptual distinction between dignity as a value and as a right does not make a great practical difference in this context.

4. Right to Name and Identity as Part of Protection of the Person

The judge then focuses on the right to a name and identity. It is stated that a person’s name and identity are key components of human dignity and that it is impossible to function in modern society without a defined name and identity. Absent such protection, many rights that the Constitution protects and assumes (for example, the ability to vote under Article 16) could not realistically be exercised, because a person could not establish their entitlement without a recognised identity.

Drawing on the decision in The People (DPP) v AM, the judge notes that the “protection of the person” in Article 40.3.2° extends beyond bodily integrity to include the integrity of the human mind and personality. From this perspective, the right to one’s identity is “quite obviously” a central feature of human personality. Accordingly, the right to a defined name and identity is held to form part of the rights derived from the protection of the person in Article 40.3.2°, as well as being bound up with the dignity of the individual.

5. Whether the Constitutional Rights Were Infringed

Having affirmed that there is a constitutionally protected right to one’s name and identity (grounded in dignity and the protection of the person), the judge turns to whether these rights have been infringed in the present case.

The judge first recognises that the State owes, in general terms, a duty to protect those who have put their lives at risk by assisting in major criminal investigations. However, it is expressly stated that this is not to suggest that the State is constitutionally obliged to create or maintain a Witness Security Programme as such.

Article 40.3.2° is then examined. Its wording (“as best it may”) shows that the State’s duty to protect life and person is tempered by practicability. Relying on Moynihan v Greensmyth, the judge emphasises that this language implies the State may have to take other considerations into account when seeking to vindicate life and person. In the present context, one of those considerations is the State’s very strong interest in maintaining the accuracy and integrity of its civil registration system—the same interest underlined in Chesnokov.

The judge states that “very clear and cogent evidence” would be required in any case before the contention could even arise that the State is constitutionally obliged, in order to safeguard the rights to life and person, to depart from the authenticity of its civil registration records, for example by issuing altered birth or marriage certificates. Even in such a scenario, the State’s interest in authenticity would remain “a very powerful one.”

Assessing the evidence in this case, the judge acknowledges the Plaintiffs/Appellants’ personal difficulties and unhappiness under the current arrangements and notes that such difficulties may be inherent in participation in a Witness Security Programme. However, the judge concludes that the evidence does not go beyond demonstrating considerable personal inconvenience and distress. It does not show that the lives of the Plaintiffs/Appellants have been directly placed in jeopardy by the State’s refusal to supply altered birth and marriage certificates.

The judgment expressly notes that, if the evidence had shown that the Plaintiffs/Appellants’ lives were directly jeopardised by the absence of altered documents, “different considerations might apply.” The judge, however, makes no determination on that broader question because it is not established on the evidence in this case.

6. Final Constitutional Conclusion

In the concluding section, the judge reiterates the key constitutional holding: the right to one’s name and identity is protected as part of the dignity of the individual (Preamble) and the protection of the person (Article 40.3.2°). However, this right is characterised as a right to have one’s authentic name and civil registration details recorded by the State. The State’s interest in preserving the authenticity of civil registration details is said to remain “a very powerful one” in all circumstances.

Therefore, only in cases supported by very clear and cogent evidence could it even be entertained that the Constitution might oblige the State to “break with the authenticity” of civil records in order to safeguard rights to life or person. On the evidence presented by the Plaintiffs/Appellants, that high evidential standard is not met.

Holding and Implications

Holding: The Supreme Court judge concurs in the dismissal of the appeal. The court recognises that:

• There is a constitutionally protected right to the recognition of one’s identity by the State, including the right to a defined name and identity, which is derived from the dignity of the individual (as referenced in the Preamble) and from the protection of the person under Article 40.3.2°.
• This right is a right to have authentic personal and civil registration details recorded and recognised by the State, not a right to altered or inauthentic civil documents.
• The State has a compelling and ongoing interest in maintaining the accuracy and integrity of its civil registration system.
• Only very clear and cogent evidence of a threat to rights such as life or the person could potentially justify any constitutional obligation on the State to depart from the authenticity of civil records; such evidence was not present in this case.

Accordingly, the constitutional challenge fails, and the appeal is DISMISSED.

Implications: The direct consequence for the parties is that the Plaintiffs/Appellants are not entitled, on the basis of the evidence in this case, to require the State to issue altered birth or marriage certificates as part of the Witness Security Programme. The existing civil registration records remain in their authentic form, and the State is not found to have infringed the constitutional rights asserted by the Plaintiffs/Appellants on the facts as established.

The judgment also confirms within this case that rights relating to personal identity and official recognition of that identity are to be treated as rights derived from explicit constitutional provisions—particularly dignity and the protection of the person—rather than as free‑standing unenumerated rights, and that the State’s obligation to protect life and person under Article 40.3.2° must be balanced against its strong interest in maintaining an authentic system of civil registration. The opinion does not purport to set out broader implications beyond resolving the issues presented in this appeal.