University of Wollongong Research Online University of Wollongong Thesis Collection University of Wollongong Thesis Collections 2012 Forensic use of DNA information: human rights, privacy and other challenges Khaleda Parven University of Wollongong Recommended Citation Parven, Khaleda, Forensic use of DNA information: human rights, privacy and other challenges, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 2012. http://ro.uow.edu.au/theses/3693 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] FORENSIC USE OF DNA INFORMATION: HUMAN RIGHTS, PRIVACY AND OTHER CHALLENGES A thesis submitted in fulfilment of the requirements for the award of the degree DOCTOR OF PHILOSOPHY UNIVERSITY OF WOLLONGONG KHALEDA PARVEN LLM in Law and IT (Stockholm University), LLM (University of Dhaka), LLB (Hons) (University of Dhaka) FACULTY OF LAW 2012 CERTIFICATION I, Khaleda Parven, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy, in the Faculty of Law, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Khaleda Parven January 2012 i ABSTRACT Science and technology has developed considerably and discovered lots of new ideas for the benefit of humankind. The advancement of DNA technology has contributed significantly to various fields. Forensic use of DNA information has great potential to assist in the delivery of justice. At the same time ‘human rights and privacy violations’ as well as ‘other challenges’ that exist in relation to its use cannot be ignored. Therefore the forensic use of genetic information has created two major mutually dependent yet sometimes opposing contexts — one is ensuring justice by protecting public interest and security, and the other is protecting human rights and privacy of the data subject. This thesis, therefore, explores the implications of one of the most successful (yet not universally accepted or uncontroversial) developments of science and technology: the forensic use of DNA information in the justice delivery system. The thesis examines the issue via two case studies, one of the National DNA database (NDNAD) of the UK, and the other of the National Forensic DNA Profiling Laboratory (NFDPL) of Bangladesh, representing developed and developing countries respectively. These case studies reveal the intentions of governments in the use of the technology and the establishment of the associated databases. The views of ordinary people regarding emerging challenges are also canvassed both in the context of the developed and developing countries. More specifically, the thesis addresses the following central questions: ‘Are there any human rights and privacy violations?’; ‘To what extent are developing countries concerned about the issues of human rights and genetic privacy violations?’; and ‘How can any gaps between developed and developing countries be minimised?’. It also considers whether the international community is considering these issues as emerging threats to sustainable development, the enforcement of justice, and to international human rights norms. The main argument developed in this thesis is that there is some scope for human rights and privacy violations while using human DNA data for the justice delivery purposes, though the nature and scope of such violations differ to some extent depending upon the DNA facility selected (that is, the NDNAD or the NFDPL). i Some financial-technological and administrative challenges are also revealed by the analysis of these case studies. Findings in this thesis suggest that since both the forensic use of DNA information is vital for detecting criminals and exonerating the innocent; however, at the same time, such use should not compromise human rights and privacy protection. Taking an ‘absolute’ approach to combating crime or to maintaining human rights in that context is fruitless. Neither one nor the other can prevail absolutely and to the detriment of the other. Time and again, it is a question of ‘balance’ or ‘proportionality’. In such a situation, the present study makes a number of specific recommendations in regard to encouraging and reinforcing the proper utilisation of genetic information in the justice delivery system. Among these recommendations, the author of this thesis considered that the confidence of data subject in the system is crucial; this is because a trustworthy system helps ensure justice and enhances social harmony. The possible solutions to these human rights and other challenges (such as resource levels and so on), of course, depend on the country context, as well as political will and/or policy of the government. Governments and the international community should consider all these factors when looking at and making recommendations for the exploding growth of forensic use of DNA data and databases in the justice delivery system, and acting upon those recommendations. ii ACKNOWLEDGEMENTS I am indebted to many individuals and institutions for their sincere support during the course of my study. First of all, I would like to express my gratitude to the University of Wollongong, specially the Faculty of Law, for giving me a unique opportunity for undertaking this research, and also the AusAID Program for offering me the Australian Leadership Award (ALA) which allowed me completing this study with all necessary supports, including their financial supports for fieldwork and data collection. I am also thankful to the Ministry of Law, Justice and Parliamentary Affairs, Government of the People’s Republic of Bangladesh for allowing me to pursue this study. I would like to express my sincere thanks and appreciation to my supervisor, Associate Professor Jakkrit Kaupoth, for providing me with excellent guidance, advising wisely and giving extremely helpful well thought out comments on my research work. I am also thankful to my co-supervisor, Dr Charles Chew, for giving his insightful and clearly articulated remarks. My special thanks to Ms Elaine Newby for her excellent editorial services. I am also grateful to all other academic and administrative staffs of the Faculty of Law for their sincere cooperation in carrying out this research. I am also thankful to all staff members in the library, research services office, research student centre, and the Information Technology Services helpdesk of UOW for their unfailing assistance. This work has benefited from various research organisations. My special appreciation goes to the Director and other staff of the Multi-Sectoral Programme on Violence Against Women (MSP-VAW), as well as the entire unit of the National Forensic DNA Profiling Laboratory, Bangladesh, for their time and cooperation in interviews and data collection. I am grateful to my friends and colleagues for encouraging me all the time and providing supports in a number of ways. With a feeling of my highest respect, I would like to pay the richest tributes to the memory, life and work of my father, who passed away. My limitless gratitude to my mother who always hides her pains for my joys even at her age. iii The incomparable appreciation to my husband Md Zahurul Haq who has been my best guide and friend all through my study, for his care, sacrifice, and excellent support during this painstaking research. I specially acknowledge the role played by my young daughter, Juhainah who demonstrated wonderful patience when I really needed to concentrate in my studies. I offer my regards to all those who supported me in any respects in the completion of this thesis. Above everything, I must express heartiest gratitude to the Almighty for providing me with His wonderful blessings that helped me to have patience at critical times and complete the project successfully. iv ACRONYMS ACPO Association of Chief Police Officers AD Appellate Division ALRC Australian Law Reform Commission APA Association of Police Authorities ASN Arrestee Summons Number BDT Bangladeshi Taka BTRC Bangladesh Telecommunication Regulatory Commission CAQDAS Computer-Assisted Qualitative Data Analysis Software CODIS Combined DNA Index System CJPOA Criminal Justice and Public Order Act CJPA Criminal Justice and Police Act CJA Criminal Justice Act CJ Criminal Justice CTA Counter Terrorism Act CDFD Centre for DNA Fingerprinting and Diagnostics DANIDA Danish International Development Agency DNA Deoxyribonucleic Acid DEB DNA Executive Board DZ Dizygotic DHHS Department of Health and Human Services EU European Union ECtHR European Court of Human Rights EDNAP European DNA Profiling Group ECHR European Convention for the Protection of Human Rights ECOSOC Economic and Social Council ENFSI European Network of Forensic Science Institutes FBI Federal Bureau of Investigation FSS Forensic Science Service FSR Forensic Science Regulator GINA Genetic Information Non-discrimination Act GovCo Government-owned Contractor-operated GT Grounded Theory v HCD High Court Division HGP Human Genome Project HGC Human Genetics Commission HIPAA Health Insurance Portability and Accountability Act HLA Human Leucocyte Antigen HOC Home Office Circular HSD Health Sector Database HO Home Office HREC Human Research Ethics Committee ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICO Information Commissioner Office