Forensic Use of DNA Information V. Human Rights and Privacy Challenges

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I INTRODUCTION

The use of scientific genetic-based evidence (DNA profiling) (1) in legal case investigation processes brings into collaboration the disciplines of science and law, which have their own institutional needs, standards and imperatives. The combination of these two disciplines is broadly geared toward ensuring justice for various cases, without completing retaining and relinquishing their autonomy. (2) Recent scientific advances through DNA technology play an important role in providing legal protections (3) and the preservation of law and order. The widespread use of DNA data to detect offenders and protect the rights of the innocent (that is, exonerating the wrongly-accused) (4) is one of the most notable examples of such advancements and revolutionary impact of DNA technology, which makes the justice delivery system more efficient and accurate. (5) However, the use of this new technology is not completely risk free. DNA profiling may reveal very sensitive information about an individual and their family which may affect them adversely if not properly guarded against potential misuse--accidental or deliberate. The most common form of such misuse resulting in serious violation of privacy and human rights could be unauthorised disclosure of sensitive information with regard to a person's predisposition to disease and their ancestry, for instance, which can be obtained from their DNA samples. Therefore, it is important to adopt a balanced approach in the use of DNA information, so the risk of the violation of privacy and human rights remain at an acceptable level.

The identification of offenders and the protection of innocent suspects are two of the main goals for ensuring justice. (6) DNA samples and profiles are very useful for identification purposes, for example, in identifying victims of disasters, as well as suspects (including rapists and murderers). It is also useful for conducting parentage testing and for resolving immigration cases, where a familial relationship (or identity) is in question. (7) In many instances, suspects who are actually innocent are relatively quickly acquitted or excluded from legal proceedings. This technology is, in effect, upholding the principles of 'presumption of innocence', which requires that 'guilt must be proved beyond reasonable doubt', upon which each and every criminal justice system is based. Therefore, every accused person irrespective of his or her status has a right to a fair trial. This legal right even applies to those who have been convicted of similar offences committed in the past. (8) The right of a 'fair trial' is derived from the principles of natural justice. This right has also become the norm of international and regional human rights law (9) and it is also adopted by many countries in their procedural law, though the form and practice of the principles of natural justice may vary from system to system on the basis of prevailing conditions of the society concerned. (10) This is one of the fundamental canons of modern democracy and is reflected in legal jurisprudence throughout the world. With the support of DNA technology, the right for a fair trial has been enhanced and it has also contributed to the speedier administration of justice. (11)

During the mid-1980 s, the potential application of DNA typing or profiling was initiated by laboratories in the United Kingdom (UK), the United States (US), and Canada. (12) The modern forensic DNA typing invented by Professor Alec Jeffrey was first used in the Colin Pitchfork case in 1985 in the UK. (13) This was the first criminal case in which DNA was used in the UK and the resolution of this case provided an effective demonstration of this method's potential. It also demonstrated for the first time how a small DNA sample could be used to identify a perpetrator from amongst a large population. (14) By the late 1980s the technology was being used in the US by commercial laboratories and the Federal Bureau of Investigation (FBI). …

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