1 CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL [B ]: ISSUES FOR CONSIDERATION AND COMPARATIVE ANALYSIS 6 October 2009 Sueanne S. Isaac

2 PART 1: ISSUES FOR CONSIDERATION

3 1.Constitutional Issues Possible infringement of rights including - Equality (s9) - Privacy (s14) - Human Dignity (s10) - Bodily Integrity (s12) - Children (s28) - Accused (s35)

4 ISSUES FOR CONSIDERATION 2.Difference between finger-prints and DNA samples - finger-print two-dimensional image on raised portion of epidermis - DNA obtained from blood or tissue sample Fingerprint DNA Structure

5 ISSUES FOR CONSIDERATION 3. The taking of finger-print and DNA samples for every offence - No differentiation between serious and minor offences. 4. Retention for five years of finger-prints, DNA samples, DNA profiles, photographic images and body-prints - Samples of accused people retained for five years even if charges against when withdrawn or they are acquitted. 5. Retention of finger-prints, DNA samples, DNA profiles, photographic images and body-prints of arrested people - DNA samples and finger-prints are taken from all arrested people.

6 ISSUES FOR CONSIDERATION 6. Destruction of finger-prints, DNA samples and profiles of a person who was not convicted of a crime - The information is destroyed after 5 years. 7. Mandatory retention of DNA samples - Capacity issues 8. Child Offenders - Treated the same as adults. - Child Justice Act

7 ISSUES FOR CONSIDERATION 9. Body-prints - Definition restrictive? 10. Using force to obtain evidence - Use of force against all people and not just accused people 11. Volunteers - Consent cannot be withdrawn

8 ISSUES FOR CONSIDERATION 12. Expungement - No expungement procedure provided in the Bill. 13. Matches of the DNA Database vs. actual convictions - A match of a crime scene sample with a profile on the database does not mean that the perpetrator has been identified. 14. Extending the Database to every citizen - Constitutional and capacity issues.

9 ISSUES FOR CONSIDERATION 15. Implementation Plan - Capacity of SAPS to deal with the duties imposed by the Bill. 16. Cost Implications - Is the Bill sufficiently funded? 17. Training of SAPS officials - Training plan

10 ISSUES FOR CONSIDERATION 18. Regulations to be approved by Parliament vs. National Instructions issued by the National Commissioner - Should there be regulations which are approved by Parliament? 19. Sharing of information with foreign law enforcement agencies - Protection of information. 20. Safeguards and quality assurance - Independent advisory panel?

11 PART 2: COMPARATIVE ANALYSIS

12 COMPARATIVE ANALYSIS 1.From whom must a sample be taken? - UK: Arrested and convicted people - USA: Arrested and convicted people - Canada: On obtaining a DNA warrant 2.The retention of DNA profiles from a convicted person - UK: Profiles of all convicted people stored indefinitely. - USA: Profiles people convicted of federal crimes. 47 States store profiles of offenders convicted of felonies. 37 States store profiles of offenders convicted of certain sex crime misdemeanours 4 States for wider list of misdemeanours.

13 3.Retention of DNA samples - USA: Depends of the State. - UK: Indefinite retention. Marper judgment - EU States: No or limited retention - Canada: No retention 4.Retention of DNA profiles of a person who was not convicted of an offence - UK: Indefinite retention of arrestee profiles - USA: Retention with expungement clause - EU States: No or limited retention COMPARATIVE ANALYSIS

14 COMPARATIVE ANALYSIS 5.Children - USA: 32 States retain profiles of juvenile convicts - UK: Profiles and samples retained indefinitely 6.Expungement of Records - USA: Detailed expungement procedure at federal level and 38 states have expungement procedure - UK: No expungement. Considering automatic destruction of profiles after period of time and early deletion of records in specified cases. (eg. unlawful arrest and no offence committed)

Volunteers - UK: Indefinite retention. Proposal not to include volunteers on the database. - Canada: Immediate destruction if person excluded as a suspect 8. Foreign access to DNA profiles - UK: Concerns over data protection. Recommended strict guidelines. - EU: Stringent privacy regulations. 9. DNA Databanks - USA: DNA databases at local, state and federal level. NDIS is the federal database run by the FBI using CODIS software programme. - Canada: Has a crime scene index and convicted offenders index. COMPARATIVE ANALYSIS

16. In summary the Committee may consider the following issues: 1. the constitutionality of the Bill 2. the implementation of the Bill 3. the cost implications of the Bill. CONCLUSION