Patricia Whittle Research Unit Tel: (021) SUMMARY OF MAIN ISSUES IN THE CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL [B ] OCTOBER 2009 PATRICIA WHITTLE

Patricia Whittle Research Unit Tel: (021) Contents Introduction Structure of Bill – Acts Amended; Key issues Clause 1- Heading substituted Criminal Procedure Act Chpt 3 – insertion of sections Clause 2 – S36A Definitions – Authorised Person; Terms S36B ; S36C Clause 3- amends s37 Clause 6 - Chapters 5A and 5B of the SAPS Act Firearms Control Act Explosives Act

Patricia Whittle Research Unit Tel: (021) Introduction Current : - CPA only regulates taking of blood samples in criminal cases & ascertainment of other bodily features - Police have access to own database only - stores fingerprints of a limited number of convicted persons) Changes: Criminal Law (Forensic Procedures) A/B: expand the powers of the police to collect and store DNA samples and fingerprints. establish & administer a National DNA database (NDDSA) give police access to the electronic databases of Dpt of Home Affairs ( fingerprints of 31 million citizens and approximately 2, 5 million foreigners), and Dpt of Transport (6 million thumbprints)

Patricia Whittle Research Unit Tel: (021) Structure of the Bill Acts amended: Criminal Procedure Act; South African Police Service Act; Firearms Control Act; Explosives Act Summary of key issues in Bill for consideration Preamble sets out objectives of the Bill; a definitions clause (Clause 2) inserted into the CPA, and extended powers of SAPS re taking of fingerprints, “non- intimate” DNA samples; body prints & concomitant police powers Storage and use of fingerprints, body prints and photographic images of persons;

Patricia Whittle Research Unit Tel: (021) Structure (continued) Establishment, administration and maintenance of a national DNA database, different indices: Crime Scene Index; Reference Index; Convicted Offender Index; Volunteer Index and Personnel, Contractor and Supplier Eliminator Index. Standards for quality assurance of forensic science laboratories and forensic analysis; Retention, storage & destruction of samples & DNA profiles; Offences and penalties for non-compliance with regard to communicating information contained in the DNA database; National Instructions & Regulations; Reporting to Parliament Consequential amendments to Firearms Control Act and Explosives Act (Clauses 7- 10).

Patricia Whittle Research Unit Tel: (021) Key issues in Bill - The expansion of the powers of the police to collect, store and destroy DNA and fingerprint evidence; - The scope of the Bill in respect of which persons the Bill will be applicable to; the applicability of the Bill to children; - The purpose of DNA & fingerprint evidence; - The retention of samples and profiles of unconvicted persons; - Informed consent and voluntary storing of DNA and fingerprint evidence and withdrawal of consent.

Patricia Whittle Research Unit Tel: (021) Definitions Clause 2 (inserts s36A into CPA): S36A(1)(a) ‘authorised person’ means in reference to- (i)photographic images, finger-prints or body-prints, any police official in the performance of his or her official duties; or (ii) the NDDSA, the police officer commanding the Division: Criminal Record and Forensic Science Service within the South African Police Service or his or her delegate “any police official” problematic – to ensure integrity of DNA samples- police officials of a certain (specified) seniority / rank; required training and qualifications

Patricia Whittle Research Unit Tel: (021) Definitions (continued)-Terminology in s36A(1) Body prints- prints from a person’s ear, foot, note, palm or toes Child- “a person under the age of 18 years” s36A(2) “unless the context indicates otherwise, any reference to a ‘person’ includes a ‘child’.” DNA sample – (intimate and non-intimate samples) DNA profile- Results of forensic DNA analysis of an intimate or non-intimate sample or other body fluids Intimate sample- a sample of blood other than a blood finger prick- Q: What about semen and other intimate body fluids? Non-intimate sample- include a sample of hair (other than pubic hair); samples taken from a nail or under a nail, a swab taken from the mouth (buccal swab); a blood finger prick or a combination of these

Patricia Whittle Research Unit Tel: (021) Definitions (continued)- S and Marper v The United Kingdom Judgment, 4 December 2008: DNA stands for Deoxyribonucleic Acid which is the chemical found in virtually every cell in the body and which carries genetic information from one generation to the next. The genetic information carried in DNA is in the form of a code or language which, when translated, determines our physical characteristics and directs all the chemical processes in the body. Except for identical twins, each person's DNA is unique. Half of the DNA is inherited from our father and the other half from our mother. DNA can be extracted from any cells that contain a structure called the nucleus. This includes blood, semen, saliva or hair samples. DNA profiles are digitised information that is stored electronically on the DNA Database, together with details of the person to whom it relates, following an analysis of the samples that had been taken by the police or authorised persons, and any sub-samples or part samples that had been retained after this process had been completed.

Patricia Whittle Research Unit Tel: (021) Section 36B deals with fingerprints and non-intimate samples Scope of application of Bill: s36B(1) “A police official must- (a)take the finger-prints or must cause such prints to be taken of any- (i)person arrested upon any charge” Persons: - “any person” ; - children; - accused vs convicted persons; - retrospective application of Bill; - prisoners and parolees -

Patricia Whittle Research Unit Tel: (021) Scope of application of Bill (continued) Purpose of DNA and fingerprint evidence Penalties (up to 15 yrs imprisonment) 5 yr Retention ; destruction of samples & profiles of un-convicted persons

Patricia Whittle Research Unit Tel: (021) Section 36C deals with fingerprints, body-prints and non-intimate samples of a person or group of persons Can be taken without a warrant “Reasonable grounds” to suspect an offence has been committed – what constitutes “reasonable grounds” ? Belief that prints and samples will be of value in investigation s36C(3)(c): who is “person who has control over prints or samples”? Clearer distinctions and consistency needed in Bill regarding persons who collect; handle; transport; store; analyse; and compile DNA profile

Patricia Whittle Research Unit Tel: (021) Clause 3 of Bill: Amends s37 of the CPA Body prints; photographic images; intimate & non - intimate samples Intimate samples only to be taken by a registered medical practitioner, registered nurse or district surgeon s37(2)(b): reasonable grounds i.r.o medical practitioner Bodily features determined by registered medical practitioner, registered nurse or district surgeon s37(3)(a)- A court may order ascertainment of bodily feature and taking of intimate sample “in any case in which a police official is not empowered under subsection 1 or section 36B to take finger-prints, body-prints or a non-intimate sample”. Under which circumstances? s37(8) destruction of prints, samples and information after 5 years where no conviction

Patricia Whittle Research Unit Tel: (021) Insertion of Chapter 5A into SAPS Act Storage and use of finger-prints, body-prints and photographic images S15B of Chapter 5A allows ‘speculative’ searching for the cross-checking of prints & images in SAPS databases against the databases of other departments. S15C of Chapter 5A - the National Police Commissioner, in consultation with the Minister, must issue National Instructions and develop training courses in this regard. NB. National Instructions regarding fingerprints, body prints and photographic images not required to be tabled in Parliament. Only National Instructions referred to in Chapter 5B (s 15Q) relating to DNA evidence must be tabled in Parliament.

Patricia Whittle Research Unit Tel: (021) Chapter 5A (continued) Section 15C(3)- Particular responsibilities can only be carried out by the Divisional Commissioner of the Criminal Record and Forensic Science Services.  Consideration should be given to: - the input by then Deputy Minister of Justice to Ad Hoc Committee that this was to provide a certain level of independence and accountability from the Police as a whole, as it was deemed inappropriate at this point to establish a separate, independent structure. Are there plans to give full autonomy / independence in future? - measures within the Bill to ensure some independence and accountability i.t.o the management of the National DNA Database, from the SAPS as a whole. Are these sufficient? The National Police Commissioner must develop, implement and maintain a ‘personal identification services strategy’ as well as systems and processes to give effect to Chapters 5A and 5B. What is a ‘personal identification services strategy’?

Patricia Whittle Research Unit Tel: (021) Insertion of Chapter 5B into SAPS Act Establishment, administration and maintenance of National DNA Database of South Africa (NDDSA) The main issues under Chapter 5B Destruction of DNA samples vs profiles Volunteer Index and withdrawal of consent; Children (concession) Elimination of suspects S15M - DNA profiles from other countries can be compared with the profiles in the NDDSA; Profiles in NDDSA can be communicated, for comparison purposes, to a foreign country S15O (retention, storage & destruction of samples) - DNA profiles may not be destroyed, but may be updated and then substituted. - Samples of unconvicted persons destroyed after 5 years. - Profiles of unconvicted persons will remain [(section 15O(2)(a)), p16 of the Bill] S15O(2)(a): “no DNA profile loaded onto the NDDSA may be destroyed” - Is this contradictory to s15O(4) requiring DNA samples must be destroyed after 5 years where the person has not been convicted? Basis for retaining DNA profiles after DNA samples destroyed?

Patricia Whittle Research Unit Tel: (021) Chapter 5B (continued) I.t.o limitation sections regarding amendments to the CPA (see for example s37(8)) fingerprints, body-prints, photographic images, intimate samples or non-intimate samples or information derived from such samples shall be destroyed after 5 years, if the person is not convicted by a court of law’. ‘Information’ refers to profiles. If the intention is that all profiles of unconvicted persons will be destroyed after 5 years, then the relevant sections in the Bill which refers to ‘information derived from such samples’ should be amended to read ‘DNA profiles’ in order to make this clear. S15O(2)(a) can e.g. be amended to refer specifically to the Convicted Offenders Index.  The Bill is not clear on the intention behind the retention of profiles.  Consideration should be given to whether:  All profiles in the database in any of the Indices should be retained forever.  Only the profiles of convicted persons should be retained forever.  Profiles of unconvicted persons should be retained for a stipulated time period, e.g. 5 years.

Patricia Whittle Research Unit Tel: (021) Chapter 5B (continued) Should all profiles in all Indices (such as the Volunteer Index and the Personnel, Contractor and Supplier Elimination Index) be treated in the same manner? The various indices of the NDDSA are established under Chapter 5B of the SAPS Act: - Crime Scene Index (contains profiles of bodily samples found at crime scenes); - Reference Index (profiles of unconvicted persons of samples collected under Chapter 3 of the CPA; Firearms Control Act or the Explosives Act); - Convicted Offender Index; - Volunteer Index (contains profiles of people who have volunteered samples, for example parents who volunteer samples from their children in case they ever get reported missing); and - Personnel, Contractor and Supplier Elimination Index (profiles for example of police officers, for exclusion purposes).  Issues for consideration – withdrawal of consent ; elimination of suspects.

Patricia Whittle Research Unit Tel: (021) Consequential Amendments in Clauses 7 – 10 Taking, storing and retention of finger print, body print and DNA samples To bring the Firearms Control Act and the Explosives Act, respectively, in line with the provisions of the Criminal Procedure Act and the South African Police Service Act  Firearms Control Act (Chapter 4: sections 6 - 8) A full set of fingerprints of applicant must accompany applications for a competency certificate, licence, permit or authorisation. Stored on Central Firearms Register & various databases, including Central Firearms Database Any police official - to establish commission of a crime ; for investigation purposes Intimate samples from the body of a person may only be taken by a registered medical practitioner or registered nurse To determine whether a person has handled or discharged a firearm.  Explosives Act (Chapter 2: section 9) Prints and samples can be taken for investigation purposes. Any police official - reasonable grounds Intimate samples to be taken from the body of a person may only be taken by a registered medical practitioner or registered nurse. To determine whether a person has handled or detonated an explosive.

Patricia Whittle Research Unit Tel: (021) Conclusion  SAPS should have the proper forensics experts, training, equipment and facilities in place before the Bill comes into operation, in order to achieve the objects of the Bill.  Greater safeguards should be built into the Bill to spell out that DNA evidence should not form the only basis on which the prosecution’s case is built up. The proper detective and follow-up work, and all other Constitutional and legislative requirements must be met, and the DNA evidence should be used in support only of the prosecution’s case.  Considering the shortage of forensics personnel, will SAPS be in a position to deliver the required forensics personnel capacity?  The Department should provide more details in respect of the costing of the Bill, estimated at R8 to R9 billion, as well as plans/phases for roll-out.  The use of DNA evidence will enhance the police’s crime-fighting capabilities, provided that all constitutional requirements have been met and that the necessary safeguards and remedies / grounds for refusal or appeal are clearly set out.  Consider the applicability of the Constitution; the Promotion of Administrative Justice Act; and the Access to Information Act.