A legislative bar to providing people in witness protection with new birth certificates is a “major hurdle” in operating the scheme, according to internal Garda correspondence cited before the High Court.
The letter said the absence of birth documents with participants’ new aliases might present issues which, “while not insurmountable, would be lessened considerably” if they had the certificates that would work as a further mechanism to sever ties with their previous names.
Details about the workings of the secretive Garda-operated witness security programme, first introduced in 1997, were outlined in a new High Court judgment dismissing a constitutional claim brought by the “Doe” family, who signed up due to continuing threats and harassment after they provided information to gardaí about the activities of a criminal gang.
Mr Justice Rory Mulcahy concluded that the lack of new certificates has not led to an infringement of the Does’ rights under the Constitution, European Convention for the Protection of Human Rights and Fundamental Freedoms and the EU Charter of Fundamental Rights.
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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.
It seemed to the judge that some of the Does’ difficulties might have been avoided if Ireland’s witness protection programme was placed on a statutory footing and there was more visibility about what the programme involved.
He noted a garda who gave evidence to the court accepted a legislative scheme permitting new certificates would be “very beneficial”, although not “critical”.
While accepting legislation could be framed to accommodate the Does’ situation, this would somewhat diminish the status that the birth and marriage registers have as historical records. He rejected the family’s contention that there is a lacuna in the law regarding new certificates for security programme participants that leads to a violation of their constitutional rights.
The Does had alleged they were told before participating that they would receive these certificates. The Garda Commissioner, Minister for Justice, Attorney General and Ireland, emphatically denied this, arguing such a provision would be unlawful.
The judge heard the case in private, with the Doe family attending court remotely without appearing on camera for security reasons.
Before the Does entered witness protection, the State took steps to protect the family, who had to relocate within Ireland several times. However, gang threats continued and gardaí spent some years assessing their suitability for relocating overseas as part of the witness security programme.
Each of their children’s births was registered normally. By the time of their youngest child’s birth, the rest of the family had changed their names, so his birth certificate is in the name he uses abroad.
Mr Justice Mulcahy said it appears the Does have passports and PPS numbers in their new names, while the parents also have new driving licences.
The judge said the family’s voluntary participation in the programme has, broadly speaking, been a success, and they no longer require financial assistance from the defendants.
However, they have had difficulty registering the children in schools and seeking certain benefits and had to rely on assistance from the host agency to overcome this. They anticipate further problems and argue they will never be entirely independent, contrary to what they understood was the programme’s intention.
The defendants did not accept a constitutional right was engaged in the circumstances but, if a right is engaged, any interference is slight and proportionate to the legitimate aim of maintaining the register of births and marriages as accurate historical records.
A garda who dealt with the couple before their relocation said she made it clear to them they would not receive new birth certificates.
She told the court that a practice adopted before she was involved in the programme’s operations led to An Garda Síochána being provided with two blank booklets of birth certificates and a blank booklet of marriage certificates. The marriage booklet was never used, but a small number of birth certificates were created in the new names of programme participants, she said.
The garda said these were not provided to participants but shown by An Garda Siochána to official agencies when required. These were “flash documents”, she said, and could not be regarded as valid certificates.
In extreme circumstances, participants’ original birth certificates, which are stored by gardaí, could be shown, but only where a risk assessment suggests this is warranted, she said.
Mr Justice Mulcahy said the Does’ desire to live independently of the security programme is “understandable and to be admired”, but it is “unrealistic” to expect to “ever be in a position to entirely draw a line under their participation [...] at least while the risk to their lives remain”.
He felt it was more probable than not that the Does always understood the “full set of documents” would include the certificates, while the gardaí always understood the opposite.
He said a birth certificate is a “historical record, not an identity document” although it is clear that having an accurate record is fundamental to one’s identity and personhood. The Does have birth certificates that accurately record the circumstances of their birth but they are asserting an entitlement to an inaccurate record, he said.
While he had sympathy for the Does, the “stark reality” is their participation in the programme makes it necessary for them to maintain a “fabricated history”.
There is no evidence that the absence of certificates causes “insuperable” problems for them, still less that they have been deprived of any essential rights, he said. If there was any infringement of their rights, it could only be regarded as slight.
The State has taken steps to ameliorate difficulties, he added as he dismissed their case.
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