CRIMINAL LAW CRIMINAL LAW (FORENSIC PROCEDURES) (FORENSIC PROCEDURES)

AMENDMENT BILL, 2009 AMENDMENT BILL, 2009 (BILL 2 OF 2009)(BILL 2 OF 2009)

Presentation by the South African Presentation by the South African Police ServicePolice Service

CURRENT LEGAL POSITIONCURRENT LEGAL POSITION Section 37 of the Criminal Procedure Act, 1977 Section 37 of the Criminal Procedure Act, 1977

(CPA) is the only statutory provision on (CPA) is the only statutory provision on ascertaining bodily features of an accused.  It ascertaining bodily features of an accused.  It provides for fingerprints, palm-prints, foot-provides for fingerprints, palm-prints, foot-prints, photographs and the record of steps prints, photographs and the record of steps taken to obtain such evidence, to be destroyed taken to obtain such evidence, to be destroyed if a person is acquitted or no prosecution was if a person is acquitted or no prosecution was instituted against him/her.  instituted against him/her. 

Section 37 makes no mention of the collection Section 37 makes no mention of the collection of DNA evidence - it was drafted long before of DNA evidence - it was drafted long before the developments within this field - but the developments within this field - but remains the legislative source for the current remains the legislative source for the current gathering of DNA evidence in SAgathering of DNA evidence in SA. . 

STATUS: FINGERPRINT EVIDENCESTATUS: FINGERPRINT EVIDENCE There are 3 major fingerprint databases in SA, butThere are 3 major fingerprint databases in SA, butfor legal (and IT reasons) the Police can sourcefor legal (and IT reasons) the Police can sourceonly the AFIS database for criminal investigations:only the AFIS database for criminal investigations: AFIS (Automated Fingerprint Information AFIS (Automated Fingerprint Information

System) contains the following data:System) contains the following data:- 10 fingerprint databases – 6,4 million prints - 10 fingerprint databases – 6,4 million prints - Latent fingerprint database (from crime scenes,- Latent fingerprint database (from crime scenes,

suspects unknown) – 620 060 suspects unknown) – 620 060 - Palm print database – 803 470 - Palm print database – 803 470 - Latent palm print database (from crime scenes,- Latent palm print database (from crime scenes, suspects unknown) – 63 278 suspects unknown) – 63 278

STATUS: FINGERPRINT EVIDENCE STATUS: FINGERPRINT EVIDENCE (Cont)(Cont)

The HANIS system of the Department of Home The HANIS system of the Department of Home Affairs, which SAPS cannot access:Affairs, which SAPS cannot access:- 31 million prints of citizens- 31 million prints of citizens- 500 000 prints from immigrants, refugees- 500 000 prints from immigrants, refugees

and deportees (a further 2 million prints inand deportees (a further 2 million prints in the process of being loaded)the process of being loaded)

- Thus, the HANIS will eventually have 33,5- Thus, the HANIS will eventually have 33,5 million prints million prints The E-NATIS system of the Department of The E-NATIS system of the Department of

Transport, which SAPS cannot access:  7 mil Transport, which SAPS cannot access:  7 mil thumb prints (only have thumb prints, not all thumb prints (only have thumb prints, not all 10 fingers)10 fingers)

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LEGISLATIVE CHALLENGES: LEGISLATIVE CHALLENGES: FINGERPRINT EVIDENCEFINGERPRINT EVIDENCE

Despite a number of Departments administering databases Despite a number of Departments administering databases containing fingerprints, existing legislation only permits the containing fingerprints, existing legislation only permits the SAPS access to the AFIS but not to the HANIS or E-NATIS SAPS access to the AFIS but not to the HANIS or E-NATIS systems (ie 40 mil prints). systems (ie 40 mil prints).

Section 37 of the CPA does not permit the retention of finger-, Section 37 of the CPA does not permit the retention of finger-, palm-, foot-prints, photographs and the record of steps taken palm-, foot-prints, photographs and the record of steps taken to obtain such evidence if a person is acquitted or no to obtain such evidence if a person is acquitted or no prosecution was instituted against him/her. prosecution was instituted against him/her.

The Firearms Control Act, 2000 and the Explosives Act, 2003 The Firearms Control Act, 2000 and the Explosives Act, 2003 do not permit the loading of fingerprints taken in terms thereof do not permit the loading of fingerprints taken in terms thereof onto the AFIS system and can therefore not be utilized for onto the AFIS system and can therefore not be utilized for criminal investigations. criminal investigations.

As a result, a fingerprint lifted at a crime scene will most likely As a result, a fingerprint lifted at a crime scene will most likely only be checked against the “limited” number of fingerprints fromonly be checked against the “limited” number of fingerprints fromconvicted offenders, which are included in AFIS. convicted offenders, which are included in AFIS.

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Although the taking of blood samples in criminal Although the taking of blood samples in criminal cases and the ascertainment of other bodily features cases and the ascertainment of other bodily features is broadly regulated by section 37 of the CPA, no is broadly regulated by section 37 of the CPA, no mention is made of the collection of DNA evidence. mention is made of the collection of DNA evidence.

There is no legislation in South Africa specifically There is no legislation in South Africa specifically providing for the establishment and administration providing for the establishment and administration of a DNA database as a crime intelligence tool.of a DNA database as a crime intelligence tool.

SAPS has the capacity to test DNA evidence lifted SAPS has the capacity to test DNA evidence lifted from the crime scene against a known suspect. Our from the crime scene against a known suspect. Our law and forensic capacity does NOT provide us with law and forensic capacity does NOT provide us with the possibility of establishing a DNA database, at the possibility of establishing a DNA database, at least containing profiles from ALL suspects arrested least containing profiles from ALL suspects arrested and profiles arising from crime scenes.and profiles arising from crime scenes.

LEGISLATIVE CHALLENGES: LEGISLATIVE CHALLENGES: DNA EVIDENCEDNA EVIDENCE

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UK Database SA Database DNA Profile Hits

5/01 to 3/06 2000-2007

Crime scene - Crime scene 17 285 66 Suspect to Crime scene 182 612 49 Total 199 897 115 Number of Profiles loaded

1995-2006 Feb 2008

Total suspect samples 3 785 571 55 119 Total crime scene samples 382 746 68 204 Total profiles 4 168 317 123 323 % to crime scene profiles 52.2% 0.02%

UK v SA DNA PROFILING STATISTICSUK v SA DNA PROFILING STATISTICS

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INTERPRETATION OF UK V SA INTERPRETATION OF UK V SA PROFILING STATISTICSPROFILING STATISTICS

The suspect component of the SAPS database is significantly small The suspect component of the SAPS database is significantly small with a 0.02% likelihood of obtaining a DNA hit between a suspect and with a 0.02% likelihood of obtaining a DNA hit between a suspect and a sample from a crime scene. This contrasts sharply with the UK a sample from a crime scene. This contrasts sharply with the UK which has a 52.2% likelihood of obtaining a hit between a suspect and which has a 52.2% likelihood of obtaining a hit between a suspect and a sample from a crime scene.a sample from a crime scene.

Increasing the DNA database will increase the likelihood of a hit Increasing the DNA database will increase the likelihood of a hit between a suspect and a crime sample.between a suspect and a crime sample.

UK statistics indicate that, for South Africa to use DNA evidence more UK statistics indicate that, for South Africa to use DNA evidence more successfully in fighting crime, the following needs to be done:successfully in fighting crime, the following needs to be done: The number of suspects on a National DNA database needs to be The number of suspects on a National DNA database needs to be

increased dramatically- ie suspects must be loaded onto the increased dramatically- ie suspects must be loaded onto the database for it to be effective as an investigative tool- thus database for it to be effective as an investigative tool- thus suspects should represent 90%  of the database (hence the suspects should represent 90%  of the database (hence the requirement for the legislation) & crime samples should be the requirement for the legislation) & crime samples should be the smaller component. smaller component.

The crime sample component of the DNA database in South Africa The crime sample component of the DNA database in South Africa should represent a bigger proportion property crime scenes. should represent a bigger proportion property crime scenes.

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RECOMMENDATIONSRECOMMENDATIONS

The Criminal Law (Forensic Procedures) Amendment Bill and accompanying business The Criminal Law (Forensic Procedures) Amendment Bill and accompanying business plans have been drafted to address the above mentioned shortcomings, in order to 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 strengthen the SAPS forensic crime fighting capacity in respect of fingerprint and DNA evidence, by:evidence, by:-- Dealing with all aspects of biometric evidence (esp. DNA, fingerprints);Dealing with all aspects of biometric evidence (esp. DNA, fingerprints);-- Expanding and upgrading the existing fingerprint database within Expanding and upgrading the existing fingerprint database within SAPS SAPS (for example, allowing police to take fingerprints from all accused and (for example, allowing police to take fingerprints from all accused and to to keep such fingerprints);keep such fingerprints);-- Linking SAPS fingerprint database with other fingerprint databases in Linking SAPS fingerprint database with other fingerprint databases in

Government (such as DHA’s HANIS system) and allowing LEA’s to Government (such as DHA’s HANIS system) and allowing LEA’s to utilise utilise other fingerprint databases for criminal investigations;other fingerprint databases for criminal investigations;

-- Giving the SAPS the power for the first time to collect DNA samples Giving the SAPS the power for the first time to collect DNA samples (non-(non- intimate samples); andintimate samples); and

-- Establishing and providing for the management and administration of a Establishing and providing for the management and administration of a National DNA Database to include all suspects and crime scene National DNA Database to include all suspects and crime scene

profiles.profiles. The Bill aims to achieve these objectives whilst providing for The Bill aims to achieve these objectives whilst providing for strict safeguards and strict safeguards and

penaltiespenalties to ensure that forensic materials are collected, stored and used only for 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 purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution.conduct of a prosecution.

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SUMMARY OF BILLSUMMARY OF BILL

Some of the main features of the Bill can be summarised as follows:Some of the main features of the Bill can be summarised as follows:a)a) The Bill provides a new legislative framework with regard to forensic procedures and The Bill provides a new legislative framework with regard to forensic procedures and

affects various consequential amendments to a number of Acts.affects various consequential amendments to a number of Acts.b)b) Clause 1 substitutes the heading of Chapter 3 of the CPA, in order to ensure that the 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.provisions of Chapter 3 are not limited in its application to accused persons only.c)c) Clause 2, firstly, inserts a definition clause into Chapter 3 of the CPA, to clarify, 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 amongst others, new terminology associated with the establishment of a DNA database. In particular, the following definitions should be noted:database. In particular, the following definitions should be noted: The Bill distinguishes between intimate and non-intimate samples. Intimate The Bill distinguishes between intimate and non-intimate samples. Intimate

samples can only be taken by medical professionals while non-intimate samples, 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.such as a buccal swab or hair sample, can be taken by any police official.

Speculative search – The BillSpeculative search – The Bill provides that fingerprints, non-intimate samples or provides that fingerprints, non-intimate samples or the information derived from such samples (DNA profiles), may for purposes 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 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 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 (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 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 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 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 persons to whom the information derived from a speculative search may be communicated.communicated.

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SUMMARY OF BILL (Cont)SUMMARY OF BILL (Cont)

d)d) Secondly, Clause 2 inserts a new clause 36B into Chapter 3 of the CPA, to 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-provide the police with powers in respect of the taking of fingerprints and non-intimate samples of accused and convicted persons. intimate samples of accused and convicted persons. The clause makes the taking, by police officials, of fingerprints and non-The clause makes the taking, by police officials, of fingerprints and non-

intimate samples of certain categories of accused and convicted persons intimate samples of certain categories of accused and convicted persons compulsory. compulsory.

It provides for the retention of such prints and samples, but stipulates that 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 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 investigation of an offence or the conduct of a prosecution. Where fingerprints or non-intimate samples were taken from a person who was 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 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 prints and samples must be destroyed after a period of five years

This clause applies retrospectively to any convicted person serving a This clause applies retrospectively to any convicted person serving a sentence at the time of the commencement of the Act.sentence at the time of the commencement of the Act.

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SUMMARY OF BILL (Cont)SUMMARY OF BILL (Cont)

e)e) Thirdly, clause 2 inserts a new clause 36C into Chapter 3 of the CPA to provide 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 the police with powers to take fingerprints, body-prints and non-intimate samples for investigative purposes, if there are reasonable grounds to suspect 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 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 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 investigation by excluding or including one or more of the persons as possible perpetrators of the offence.perpetrators of the offence.

f)f) Clause 3 amends section 37 of the CPA in order to ensure that prints and 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 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 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 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. crime, the investigation of an offence or the conduct of a prosecution. Provision is made here and throughout the Bill for strict penalties to apply 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 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. 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 Prints and photographic images taken under section 37 (36B or 36C, if applicable) will be retained and stored on databases maintained by the applicable) will be retained and stored on databases maintained by the Division: Criminal Record and Forensic Science Service of the SAPS.Division: Criminal Record and Forensic Science Service of the SAPS.

g)g) Clauses 4 and 5 merely affects certain consequential amendments to sections Clauses 4 and 5 merely affects certain consequential amendments to sections 212 and 225 of the CPA212 and 225 of the CPA..

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SUMMARY OF BILL (Cont)SUMMARY OF BILL (Cont)

j)j) The Bill provides that the NDDSA consists of five indices, namely –The Bill provides that the NDDSA consists of five indices, namely –(i)(i) a Crime Scene Index containing DNA profiles loaded from bodily a Crime Scene Index containing DNA profiles loaded from bodily

substances found at the crime scene;substances found at the crime scene;(ii)(ii) a Reference Index containing DNA profiles loaded from samples a Reference Index containing DNA profiles loaded from samples

taken under Chapter 3 of the CPA (suspects);taken under Chapter 3 of the CPA (suspects);(iii)(iii) a Convicted Offenders Index containing DNA profiles loaded from a Convicted Offenders Index containing DNA profiles loaded from

samples taken from convicted offenders (applies retrospectively);samples taken from convicted offenders (applies retrospectively);(iv)(iv) a Volunteer Index contains DNA profiles loaded from samples a Volunteer Index contains DNA profiles loaded from samples

given by volunteers with their informed consent; andgiven by volunteers with their informed consent; and(v)(v) a Personnel, Contractor and Supplier Elimination Index, to be a Personnel, Contractor and Supplier Elimination Index, to be

used only for quality control purposes.used only for quality control purposes.k)k) The Bill requires the National Commissioner to develop standards for The Bill requires the National Commissioner to develop standards for

quality assurance, including standards for testing the proficiency of quality assurance, including standards for testing the proficiency of the laboratories and forensic analysts conducting DNA analysis.the laboratories and forensic analysts conducting DNA analysis.

l)l) The Bill also requires the National Commissioner of the SAPS to The Bill also requires the National Commissioner of the SAPS to issue national instructions relating to a number of areas that will issue national instructions relating to a number of areas that will require special attention in order to implement the legislation, such as require special attention in order to implement the legislation, such as for instance the manner in which to secure a crime scene for for instance the manner in which to secure a crime scene for purposes of collecting bodily substancespurposes of collecting bodily substances..

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SUMMARY OF BILL (Cont)SUMMARY OF BILL (Cont)

m)m)Clauses 7 and 8 affect certain consequential Clauses 7 and 8 affect certain consequential amendments to the Firearms Control Act, 2000, in amendments to the Firearms Control Act, 2000, in order to bring the provisions dealing with the order to bring the provisions dealing with the powers of the police to take prints and samples in powers of the police to take prints and samples in line with the new provisions in the CPA.line with the new provisions in the CPA.

n)n) Similarly, clauses 9 and 10 affect certain Similarly, clauses 9 and 10 affect certain conconconsequential amendments to the Explosives consequential amendments to the Explosives Act, 2003, in order to bring the provisions dealing Act, 2003, in order to bring the provisions dealing with the powers of the police to take prints and with the powers of the police to take prints and samples in line with the new provisions in the CPA.samples in line with the new provisions in the CPA.

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BENEFITS OF STRENGTHENED BENEFITS OF STRENGTHENED FORENSIC CRIME FIGHTING CAPACITYFORENSIC CRIME FIGHTING CAPACITY

A DNA database and an expanded fingerprint capacity are important crime-A DNA database and an expanded fingerprint capacity are important crime-fighting intelligence tools, particularly in crimes where detection is generally fighting intelligence tools, particularly in crimes where detection is generally low, such as property and violence related crimes and can lead to a significant 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 increase in suspect-to-crime-scene matches. (The United Kingdom, for instance, has reported that the detection rate in property crimes where DNA instance, has reported that the detection rate in property crimes where DNA samples have been collected and run against an expanded suspect database samples have been collected and run against an expanded suspect database increased from 16% to 41%.)increased from 16% to 41%.)

DNA scene-to-scene matches help identify patterns of criminal behaviour that DNA scene-to-scene matches help identify patterns of criminal behaviour that may help solve past, existing and future crimes. An expanded fingerprint may help solve past, existing and future crimes. An expanded fingerprint database and DNA database will not only increase the likelihood of identifying database and DNA database will not only increase the likelihood of identifying unknown perpetrators, but it will also increase the possibility of linking unknown perpetrators, but it will also increase the possibility of linking perpetrators to multiple crime scenes. perpetrators to multiple crime scenes.

Plea bargains and guilty pleas increase when suspects are confronted with real 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.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 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 are used not only to prove guilt, but also to prove innocence. DNA evidence leads to the early exoneration of innocent people.evidence leads to the early exoneration of innocent people.

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IMPLEMENTATIONIMPLEMENTATION

The implementation of the Bill will require significant capacity The implementation of the Bill will require significant capacity expansion in respect of both human and other resources, expansion in respect of both human and other resources, which will require funding to undertake the development of a which will require funding to undertake the development of a business systems re-engineering plan (including current and to business systems re-engineering plan (including current and to be process mapping). Additional personnel will have to be be process mapping). Additional personnel will have to be trained and retention strategies, such as an occupation trained and retention strategies, such as an occupation specific dispensation, will have to be implemented to retain specific dispensation, will have to be implemented to retain scarce skills within the forensic science field. scarce skills within the forensic science field.

The Bill has been provisionally costed and a business plan has The Bill has been provisionally costed and a business plan has been developed to map the incremental implementation of the been developed to map the incremental implementation of the Bill. National Treasury has been consulted in order to secure a Bill. National Treasury has been consulted in order to secure a budget for the implementation of the Bill.budget for the implementation of the Bill.

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CONCLUSIONCONCLUSION

In summary, the Bill has been drafted to –In summary, the Bill has been drafted to –

a) provide for the expansion of the SAPS’s a) provide for the expansion of the SAPS’s powers to take and retain fingerprints and other powers to take and retain fingerprints and other biometric materials, especially DNA samples;biometric materials, especially DNA samples;

a)a) provide the SAPS with access to fingerprint provide the SAPS with access to fingerprint databases of other Departments for crime databases of other Departments for crime investigation purposes; and investigation purposes; and

b)b) provide for the establishment, administration provide for the establishment, administration and use of a DNA database as a crime and use of a DNA database as a crime intelligence toolintelligence tool. .