PRESENTATION TO THE AD HOC COMMITTEE ON THE CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL - PowerPoint PPT Presentation

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PRESENTATION TO THE AD HOC COMMITTEE ON THE CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL

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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)

2
BACKGROUND
  • 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.

3
NEED 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    cases being withdrawn before reaching court and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.

4
What 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. 

5
OCJSR 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.

6
OCJSR 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.

7
OCJSR 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.

8
DNA EVIDENCE - UK v SA DNA Profiling Statistics
9
INTERPRETATION 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.

10
Recommendations 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.

11
Summary 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.

12
Summary 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.

13
Summary 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.

14
Summary of Bill (cont)
  1. 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.
  2. 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.

15
Summary 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.

16
Summary 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.

17
Changes 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.

18
Changes 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.

19
BENEFITS 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.

20
Implementation 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.

21
Conclusion
  • 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
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