Title: PRESENTATION TO THE AD HOC COMMITTEE ON THE CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL
1 - PRESENTATION TO THE AD HOC COMMITTEE ON THE
CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL - ON 20 JANUARY 2009
- CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT
BILL, 2009 (BILL 2 OF 2009) - BUSINESS UNUSUAL ALL HANDS ON DECK
-
- OFFICE FOR CRIMINAL JUSTICE SYSTEM REFORM (OCJSR)
2BACKGROUND
- On 7 November 2007, Cabinet adopted a package of
seven fundamental and far-reaching transformative
changes of the Criminal Justice System (the CJS
Seven-Point-Plan), which MUST ALL be adopted and
implemented in an integrated and holistic manner
to achieve a new, integrated, dynamic,
coordinated and transformed Criminal Justice
System (CJS). - Change Six of the CJS Seven-Point-Plan deals with
the implementation of key priorities identified
for the component parts of the CJS, which are
part of or impact upon the new court process,
especially as it pertains to improving capacity,
in respect of personnel, infrastructure,
resources and appropriate legislative frameworks. - In implementing Change Six, the Office for
Criminal Justice System Reform (OCJSR), which is
responsible for the Review of the Criminal
Justice System, has identified as a priority the
need to urgently strengthen two pivotal aspects
of our forensic crime fighting capacity,
especially at the crime scene, namely a coherent,
all encompassing and holistic legislative
framework for the collection, storage and use of
fingerprinting and DNA evidence.
3NEED TO URGENTLY PROMOTE LEGISLATION
- WHAT IS THE PROBLEM?
- The very high numbers of perpetrators that are
not detected combined with the high number of
cases being withdrawn before reaching court and
whilst in court, resulting in very low conviction
rates, underscores the urgent need to promote
legislation that will have a positive impact on
the investigation and adjudication stages within
the CJS, especially starting at the crime scene
level. - The major and immediate problem the OCJSR has
identified in our new strategy to fight crime is
our lack of capacity (including in respect of
personnel, infrastructure and resources and even
in respect of the lack of the requisite
legislative frameworks) and other problems we
experience at the coalface of the investigation
of crime, i.e. at the crime scene and the
investigation by detectives which immediately
follows, as well as in the forensic laboratories.
4What is the present legal position?
- Currently section 37 of the Criminal Procedure
Act, 1977 (Act No 51 of 1977)(CPA), is the only
statutory provision which deals with the
ascertainment of bodily features of an accused.
In terms of this section the taking of
fingerprints by the police is discretionary in
all circumstances. Section 37 also requires the
destruction of finger-prints, palm-prints,
foot-prints, photographs and the record of steps
taken to obtain such evidence if a person is
found not guilty or if no prosecution was
instituted against a person from whom such
evidence was collected. - Section 37 also makes no mention of the
collection of DNA evidence, since it was drafted
long before developments within this field, but
is regarded as the legislative source for the
current gathering of DNA evidence.
5OCJSR FINDINGS IN RESPECT OF FINGERPRINTS AND DNA
EVIDENCE
- General
- One of the Major problems at crime scenes Major
legal mandate, capacity and systemic constraints
have been identified in respect of at least two
pivotal aspects of our crime scene/forensic
laboratory / detective investigations, in respect
of capacity and abilities, namely fingerprinting
and DNA evidence. - Fingerprinting evidence
- Our audit has identified three major fingerprint
databases in South Africa, but for legal (and IT
reasons) our law enforcers can source only the
SAPS AFIS database for criminal investigations - The AFIS (automated fingerprint information
system) of the SAPS, which has the following
information thereon - - 10 fingerprints database 6,4 million prints
- - Latent fingerprint database (lifted from crime
scenes suspects not known) 620 060 - - Palm print database 803 470
- - Latent palm print database (lifted from crime
scenes suspects not known) 63 278 - The HANIS system of the Department of Home
Affairs, which SAPS cant access - - 31 million prints of citizens on the HANIS
- - 500 000 prints from immigrants and refugees
and deportees have been loaded onto the HANIS - - 2 million prints from immigrants, refugees and
deportees are in the process of being loaded onto
the HANIS - - Therefore, the HANIS will have 33,5 million
prints in the end - The E-NATIS system of the Department of
Transport, which SAPS cant access 7 million
thumb prints (they only take thumb prints not all
ten fingers) - The Department of Correctional Services takes
fingerprints, but these are stored on the SAPS
database.
6OCJSR FINDINGS IN RESPECT OF FINGERPRINTS AND DNA
EVIDENCE (cont)
- In summary, the OCJSR audit has found with regard
to fingerprinting evidence the following
legislative challenges - Despite the fact that a number of Government
Departments administer databases containing
fingerprints, the SAPS currently, due to legal
and information technology reasons, only have
access to the fingerprints stored on the SAPS
AFIS system. As a result, the SAPS currently have
no access to the HANIS system of the Department
of Home Affairs, where fingerprints of 31 million
citizens and about 2.5 million foreigners are
kept, or to the E-NATIS system of the Department
of Transport, where a further 6 million
thumbprints are located. - Section 37 of the CPA does not make the taking of
fingerprints compulsory, even in instances where
a person has been convicted of an offence.
Section 37(5) of the CPA, further requires the
destruction of finger-prints, palm-prints,
foot-prints, photographs and the record of steps
taken to obtain such evidence if a person is
found not guilty or if no prosecution was
instituted against a person from whom such
evidence was collected. - Fingerprints taken under the Firearms Control
Act, 2000 and the Explosives Act, 2003 are
currently not loaded onto the AFIS system and
therefore not used in criminal investigations
this is a major shortcoming. - Therefore, the manner in which fingerprints are
currently collected, loaded onto the SAPSs
fingerprint database and used, means that a
fingerprint lifted at a crime scene will most
likely only be checked against the limited
number of fingerprints from convicted offenders,
which have been included in the database.
7OCJSR FINDINGS IN RESPECT OF FINGERPRINTS AND DNA
EVIDENCE (cont)
- DNA Evidence
- The OCJSR audit found with regard to DNA evidence
the following legislative challenges - Although the taking of blood samples in criminal
cases and the ascertainment of other bodily
features is broadly regulated by section 37 of
the CPA, no mention is made of the collection of
DNA evidence. - There is no legislation in South Africa which
specifically provides for the establishment and
administration of a DNA database as a criminal
intelligence tool. - Therefore, we identified that we have the
capacity to test DNA evidence lifted from the
crime scene against a known suspect, and that
such DNA tests have provided us with a very
limited DNA database. Our law and forensic
capacity does NOT provide us with the possibility
of establishing a DNA database, at least
containing profiles from ALL suspects arrested
and profiles arising from crime scenes.
8DNA EVIDENCE - UK v SA DNA Profiling Statistics
9INTERPRETATION OF UK V SA PROFILING STATISTICS
- The SAPS have a very limited DNA database
(123 323 DNA profiles) of which only 45 (55119
out of the total 123 323) represent suspects on
its investigative repository and have only 0.02
chance of obtaining a DNA hit between a crime
sample and a suspect. The suspect component of
the database is significantly small. - This contrasts sharply with the UK who have more
than 90 of the 4.1 million DNA profiles (by
2006) originating from suspects and have a 52.2
chance of obtaining a DNA hit between a suspect
and a crime sample. - Thus the success of the DNA database in
identifying suspects to crime scenes should
increase from the insignificant 0.02 to a more
effective figure towards the 52.2 of the UK as
the DNA database of SA starts growing towards a
similar profile of the UK. - The UK statistics indicate that in order for
South Africa to use DNA evidence more
successfully in fighting crime, the following
needs to be done - The number of suspects on a National DNA database
needs to be increased dramatically- ie suspects
must be loaded onto the database for it to be
effective as an investigative tool- thus the
suspect should represent 90 of the database
(hence the requirement for the legislation)
crime sample should be the smaller component. - The crime sample component of the DNA database in
South Africa will increase and should represent a
bigger proportion of property crime and be
aligned to the actual crime scenes. Although the
DNA database will increase in the number of
profiles originating from crime scenes with the
capacity improvement of crime scene examination
in SAPS, it will represent the minor component in
relation to the number of suspects loaded onto
the DNA database once the legislation becomes
effective.
10Recommendations of OCJSR
- What do we do to rectify this unacceptable
situation? - The Criminal Law (Forensic Procedures) Amendment
Bill and accompanying business plans have been
drafted to address the above mentioned
shortcomings, in order to strengthen the SAPS
forensic crime fighting capacity in respect of
fingerprint and DNA evidence, by - - Dealing with all aspects of biometric
evidence (esp. DNA, fingerprints) - - Expanding and upgrading the existing
fingerprint database within SAPS (for example,
allowing police to take fingerprints from all
accused and to keep such fingerprints) - - Linking SAPS fingerprint database with
other fingerprint databases in Government (such
as DHAs HANIS system) and allowing LEAs to
utilise other fingerprint databases for criminal
investigations - - Giving the SAPS the power for the
first time to collect DNA samples (non-intimate
samples) and - - Establishing and providing for the
management and administration of a National DNA
Database to include all suspect and crime scene
profiles. - The Bill aims to achieve these objectives whilst
providing for strict safeguards and penalties to
ensure that forensic materials are collected,
stored and used only for purposes related to the
detection of crime, the investigation of an
offence or the conduct of a prosecution.
11Summary of Bill
- Some of the main features of the Bill can be
summarised as follows - The Bill provides a new legislative framework in
regard to forensic procedures and affects various
consequential amendments to a number of Acts. - Clause 1 substitutes the heading of Chapter 3 of
the CPA, in order to ensure that the provisions
of Chapter 3 are not limited in its application
to accused persons only. - Clause 2, firstly, inserts a definition clause
into Chapter 3 of the CPA, to clarify, amongst
others, new terminology associated with the
establishment of a DNA database. In particular,
the following definitions should be noted - The Bill distinguishes between intimate and
non-intimate samples. Intimate samples can only
be taken by medical professionals while
non-intimate samples, such as a buccal swab or
hair sample, can be taken by any police official. - Speculative search The Bill provides that
fingerprints, non-intimate samples or the
information derived from such samples (DNA
profiles), may for purposes related to the
detection of crime, the investigation of an
offence or the conduct of a prosecution, be
subjected to a speculative search by an
authorised person (which is also defined in the
Bill) against other databases, in the case of
fingerprints, or against the National DNA
Database of South Africa (NDDSA) in the case of
non-intimate samples or the information derived
from such samples. The Bill stipulates the
circumstances under which, the manner in which
and the persons to whom the information derived
from a speculative search may be communicated.
12Summary of Bill (cont)
- Secondly, Clause 2 inserts a new clause 36B into
Chapter 3 of the CPA, to provide the police with
powers in respect of the taking of fingerprints
and non-intimate samples of accused and convicted
persons. - The clause makes the taking, by police officials,
of fingerprints and non-intimate samples of
certain categories of accused and convicted
persons compulsory. - It provides for the retention of such prints and
samples, but stipulates that it may only be used
for purposes related to the detection of crime,
the investigation of an offence or the conduct of
a prosecution. Where fingerprints or
non-intimate samples were taken from a person who
was not subsequently convicted by a court of law,
the Bill stipulates that such prints and samples
must be destroyed after a period of five years
(refer to discussion under Certification). - This clause applies retrospectively to any
convicted person serving a sentence at the time
of the commencement of the Act.
13Summary of Bill (cont)
- e) Thirdly, clause 2 inserts a new clause 36C
into Chapter 3 of the CPA to provide the police
with powers to take fingerprints, body-prints and
non-intimate samples for investigative purposes,
if there are reasonable grounds to suspect that a
person has committed an offence and if the police
believe that the prints or samples or the results
of an examination thereof, will be of value in
the investigation by excluding or including one
or more of the persons as possible perpetrators
of the offence. - Clause 3 amends section 37 of the CPA in order to
ensure that prints and samples taken under this
section are no longer destroyed with immediate
effect if a person was not convicted by a court
of law, but are retained for a period of five
years, to be used only for purposes related to
the detection of crime, the investigation of an
offence or the conduct of a prosecution. (Refer
to discussion on Certification). Provision is
made here and throughout the Bill for strict
penalties to apply should prints or samples or
the information derived from such samples be used
in any manner or for any purpose other than those
stipulated in the Bill. Prints and photographic
images taken under section 37 (36B or 36C, if
applicable) will be retained and stored on
databases maintained by the Division Criminal
Record and Forensic Science Service of the SAPS. - g) Clauses 4 and 5 merely affects certain
consequential amendments to sections 212 and 225
of the CPA.
14Summary of Bill (cont)
- Clause 6, firstly, inserts a new Chapter 5A into
the South African Police Service Act, 1995, (SAPS
Act), in order to deal with the storage and use
of finger-prints, body-prints and photographic
images of persons. - Secondly, clause 6 also inserts a new Chapter 5B
into the SAPS Act, in order to deal with the
establishment, administration, maintenance and
use of the National DNA Database of South Africa
(NDDSA). In other jurisdictions, provision is
often made for the establishment, management and
administration of a DNA database in terms of
separate legislation and under the auspices of an
agency. In specifically deciding to incorporate
the NDDSA within the SAPS, provision has been
made in the Bill to ensure that these specialist
functions fall under the police officer
commanding the Division Criminal Record and
Forensic Science Service. This will ensure that
full accountability rests with the official
responsible and that delivery in accordance to
the legislative provisions are not compromised.
15Summary of Bill (cont)
- j) The Bill provides that the NDDSA consists of
five indices, namely - a Crime Scene Index containing DNA profiles
loaded from bodily substances found at the crime
scene - a Reference Index containing DNA profiles loaded
from samples taken under Chapter 3 of the CPA
(suspects) - a Convicted Offenders Index containing DNA
profiles loaded from samples taken from convicted
offenders (applies retrospectively) - a Volunteer Index contains DNA profiles loaded
from samples given by volunteers with their
informed consent and - a Personnel, Contractor and Supplier Elimination
Index, to be used only for quality control
purposes. - The Bill requires the National Commissioner of
the SAPS or his or her delegate to develop
recommended standards for quality assurance,
including standards for testing the proficiency
of the laboratories and forensic analysts
conducting DNA analysis. - The Bill also requires the National Commissioner
of the SAPS to issue national instructions
relating to a number of areas that will require
special attention in order to implement the
legislation, such as for instance the manner in
which to secure a crime scene for purposes of
collecting bodily substances.
16Summary of Bill (cont)
- m) Clauses 7 and 8 affect certain consequential
amendments to the Firearms Control Act, 2000 (Act
60 of 2000), in order to bring the provisions
dealing with the powers of the police to take
prints and samples in line with the new
provisions in the CPA. - n) Similarly, clauses 9 and 10 affect certain
conconsequential amendments to the Explosives
Act, 2003 (Act 15 of 2003), in order to bring the
provisions dealing with the powers of the police
to take prints and samples in line with the new
provisions in the CPA.
17Changes affected to the Bill during Certification
by the State Law Advisers (SLA)
- The Department would like to flag two issues for
the attention of the Ad Hoc Committee, in
relation to amendments affected to the Bill
during the Certification process - Firstly, the Bill as approved by Cabinet made
provision for the indefinite retention of prints,
samples and the information derived from such
samples (DNA profiles) taken under any powers
conferred by the Bill. In other words, the Bill
had set out to specifically reverse the current
situation whereby all such evidence had to be
destroyed if a person from whom it was taken, is
not subsequently found guilty by a court of law. - (i) Experiences in other jurisdictions have shown
that if such evidence is kept, it can lead to the
successful prosecution of offenders years down
the line, offenders who would otherwise not have
been detected had there not been extensive
databases in place. - (ii) More importantly, it was also shown above
that it is necessary to dramatically increase the
number of suspects on the DNA Database, if the
database is to be an effective investigation
tool. - (iii) During the certification process, the SLA
however amended these provisions in the Bill to
provide that such prints and samples and DNA
profiles may only be retained for a period of
five years, if a person from whom it was taken is
not subsequently found guilty by a court of law.
- (iv) The Department is of the opinion that
keeping such evidence indefinitely and using it
only within the strict confines of the Bill, is
not unconstitutional for it amounts to a
justifiable limitation of the right to privacy or
the right to equality, since the increase in the
database of fingerprints and samples promotes the
public interest by the detection and prosecution
of serious crime and by exculpating the innocent
and represents a proportionate response to the
legislative aim of dealing with serious crime in
South Africa. The promotion of a comprehensive
legislative framework in this area is of
paramount importance for the fight against crime
and should there be any doubt as to the
constitutionality of such an approach, it should
best be determined by the Constitutional Court.
18Changes affected to the Bill during Certification
by the State Law Advisers (cont)
- Secondly, the Bill as approved by Cabinet
provided that where a sample was to be taken from
a child for purposes of the Volunteer Index,
informed consent had to be given by a childs
parent or guardian and such consent cannot be
subsequently withdrawn and thus such samples were
to be retained indefinitely. - The SLA amended this section to provide that
unless a child was found guilty by a court of law
such child could upon reaching the age of
majority apply to a court of law to have his or
her consent withdrawn and as a result his or her
sample would be removed. The SLA argues that it
was the parent or guardian who consented and not
the child and therefore the child should upon
reaching the age of majority have the option of
withdrawing such consent.
19BENEFITS OF STRENGTHENED FORENSIC CRIME FIGHTING
CAPACITY
- The advantages of a strengthened forensic crime
fighting capacity in these two areas can be
summarized as follows - A DNA database and an expanded fingerprint
capacity are important crime-fighting
intelligence tools, particularly in crimes where
detection is generally low, such as property and
violence related crimes and can lead to a
significant increase in suspect-to-crime-scene
matches. (The United Kingdom, for instance, has
reported that the detection rate in property
crimes where DNA samples have been collected and
run against an expanded suspect database
increased from 16 to 41.) - DNA scene-to-scene matches help identify patterns
of criminal behaviour that may help solve past,
existing and future crimes. In other words, not
only will an expanded fingerprint database and
DNA database increase the likelihood of
identifying unknown perpetrators, but it will
also increase the possibility of linking
perpetrators to multiple crime scenes. - Plea bargains and guilty pleas increase when
suspects are confronted with real evidence, such
as fingerprints and DNA evidence linking them to
a crime scene. - It should also always be borne in mind that
fingerprints and especially DNA evidence are used
not only to prove guilt, but also to prove
innocence. DNA evidence leads to the early
exoneration of innocent people. - Importantly, we are expanding and strengthening
tools of crime scene investigators and detectives
to detect perpetrators, prepare proper dockets
and increase the conviction rate.
20Implementation Plan, including a business plan,
costing this Project
- The implementation of the Bill will require
significant capacity expansion in respect of both
human and other resources, which will require
funding to undertake the development of a
business systems reengineering plan (including
current and to be process mapping). Additional
personnel will have to be trained and retention
strategies, such as an occupation specific
dispensation, must be implemented to retain
scarce skills within the forensic science field. - The Bill has been provisionally costed and a
business plan has been developed to map the
incremental implementation of the Bill. National
Treasury has been consulted in order to secure a
budget for the implementation of the Bill.
21Conclusion
- In summary, the Bill has been drafted to
- provide for the expansion of the SAPSs powers to
take and retain fingerprints and other biometric
materials, especially DNA samples - provide the SAPS with access to fingerprint
databases of other Government Departments for
criminal investigation purposes and - provide for the establishment, administration and
use of a DNA database as a criminal intelligence
tool. - Request to Ad Hoc Committee